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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


The  Treaties  of  1785,  1799  and  1828 

between  the 
United  States  and  Prussia 


Carnegie   Endowment  for  International   Peace 

•  >  * 

DIVISION  OF  INTERNATIONAL  LAW 


THE    TREATIES    OF    1785,    1799 

AND    1828    BETWEEN   THE 

UNITED   STATES  AND 

PRUSSIA 


As  Interpreted  in  Opinions  of  Attorneys  General,  Decisions  of 
Courts,  and  Diplomatic  Correspondence 


EDITED  BY 

JAMES  BROWN  SCOTT 

DIRECTOR 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :  35  WEST  32ND  STREET 
LONDON,  TORONTO,  MELBOURNE.  AND  BOMBAY 

1918 


COPYRIGHT  1918 

BY   THE 
CARNEGIE   ENDOWMENT   FOR    INTERNATIONAL   PEACE 

2  JACKSON  PLACE 
WASHINGTON,  D.  C. 


PRESS  OF  BYRON  S.  ADAMS 
WASHINGTON,  D.  C. 


Prefatory  Note 

On  January  31,  1917,  the  German  Government  informed  the  United 
States  that 

from  February  1,  1917,  all  sea  traffic  will  be  stopped  with  every 
available  weapon  and  without  further  notice  in  the  following 
blockade  zones  [describing  them  in  detail]  around  Great  Britain, 
France,  Italy  and  in  the  Eastern  Mediterranean. 

On  the  third  day  of  February,  the  President  of  the  United  States 
addressed  both  Houses  of  Congress  in  joint  session,  and,  after  stating 
in  detail  the  relations  between  Germany  and  the  United  States  and  the 
apparent  intention  on  the  part  of  the  German  Government  to  deprive 
the  United  States  of  the  rights  which  neutrals  possessed  upon  the  high 
seas,  he  informed  the  Congress  that  he  had 

directed  the  Secretary  of  State  to  announce  to  his  Excellency 
the  German  Ambassador  that  all  diplomatic  relations  between  the 
United  States  and  the  German  Empire  are  severed,  and  that  the 
American  Ambassador  at  Berlin  will  immediately  be  withdrawn ; 
and,  in  accordance  with  this  decision,  to  hand  to  his  Excellency 
his  passports. 

The  passports  were  accordingly  handed  to  his  Excellency  the  Ger- 
man Ambassador  the  same  day,  and  diplomatic  relations  between  the 
two  countries  were  thus  severed. 

There  are  three  treaties  which  in  whole  or  in  part  in  the  opinion  of 
the  German  Empire  and  of  the  United  States  affected  their  international 
relations.  The  treaties  in  question  are :  First,  the  treaty  of  amity  and 
commerce  concluded  between  Prussia  and  the  United  States  of  America 
on  September  10,  1785;  secondly,  the  treaty  of  amity  and  commerce 
concluded  between  Prussia  and  the  United  States  of  America  on  July 
11,  1799;  and,  thirdly,  the  treaty  of  commerce  and  navigation  concluded 
between  Prussia  and  the  United  States  of  America  on  May  1,  1828. 

These  treaties  have  been  held  by  the  Governments  of  the  contracting 
parties  to  apply  not  only  to  Prussia,  but  to  the  North  German  Con- 
federation, of  which  Prussia  was  the  leading  member,  and  also  to  the 


vi  PREFATORY  NOTE 

German  Empire,  of  which  the  King  of  Prussia  is  the  German  Emperor. 
The  opinions  of  the  Attorneys  General  of  the  United  States,  the  deci- 
sions of  Federal  Courts  and  the  correspondence  between  the  German 
Empire  on  the  one  hand  and  the  United  States  on  the  other,  relating  to 
the  nature  and  binding  effect  of  the  treaties,  were  collected  from  official 
sources  and  issued  in  pamphlet  form  in  March,  1917. 

War  was  then  imminent  and,  as  the  conduct  whereof  the  United  States 
complained  was  not  stopped,  on  April  2  the  President  advised  the  Con- 
gress to  declare  the  existence  of  a  state  of  war  between  the  United 
States  and  the  Imperial  German  Government,  which  the  Congress  did 
on  April  6,  1917.  The  treaties,  with  the  exception  of  Articles  XXIII 
and  XXIV  of  that  of  1799,  were,  in  so  far  as  binding,  suspended  or 
abrogated  by  the  outbreak  of  the  war.  They  have,  however,  a  distinct 
place  in  international  law  as  well  as  in  the  relations  of  the  two  contract- 
ing countries.  The  pamphlet  containing  them  is  therefore  reissued  in 
revised  and  permanent  form. 

JAMES  BROWN  SCOTT, 

Director  of  the  Division  of  International  Law. 
WASHINGTON,  D.  C, 

March  i,  1918. 


Contents 


PAGE 

TEXTS  OF  THE  TREATIES  : 

Treaty  of  Amity  and  Commerce  concluded  September  10,  1785 3 

Treaty  of  Amity  and  Commerce  concluded  July  11,  1799 26 

Treaty  of  Commerce  and  Navigation  concluded  May  1,  1828 50 

DECISIONS  OF  FEDERAL  COURTS  : 

The  Bark  Elwinc  Kreplin,  4  Benedict,  413 67 

The  Elwinc  Kreplin,  9  Blatchford,  438 74 

Ex  Parte  Newman,  14  Wallace,  152 82 

United  States  v.  Diekelman,  92  U.  S.  520 93 

North  German  Lloyd  S.  S.  Co.  v.  Hedden,  Collector,  43  Fed.  Rep.  17. ...  100 

Terlinden  v.  Ames,  184  U.  S.  270 109 

Disconto  Gesellschaft  v.  Umbreit,  208  U.  S.  570 117 

The  Steamship  Appam,  243  U.  S.  124 124 

OPINIONS  OF  ATTORNEYS  GENERAL  OF  THE  UNITED  STATES  : 

Opinion   of  August    19,    1868,   in   the   case   of   the   Deserters    from   the 

Prussian  Frigate  Niobe   137 

Opinion  of  September  19,   1885,  on  Tonnage  Duty 141 

Opinion  of  November  13,  1894,  on  the  Duty  on  Imported  Salt 142 

PROCLAMATION  BY  THE  PRESIDENT  OF  THE  UNITED  STATES,  AUGUST  22,  1870 

(EXTRACT)    147 

DIPLOMATIC  CORRESPONDENCE  : 

Claims  relative  to  tonnage  dues : 

The  German  Minister  to  the  Secretary  of  State,  August  3,  1885....  151 

The  Secretary  of  State  to  the  German  Minister,  November  7,  1885..  152 
The    German    Secretarv    of    Legation    to    the    Secretary    of    State, 

November   17,   1885. ." 153 

The  German  Minister  to  the  Secretary  of  State,  February  16,  1886..  154 

The  Secretary  of  State  to  the  German  Minister,  March  4,  1886 156 

The  German  Minister  to  the  Secretary  of  State,  August  1,  1886 157 

Case  of  the  William  P.  Frye: 

The  Secretary  of  State  to  Ambassador  Gerard,  March  31,  1915....  160 

Ambassador  Gerard  to  the  Secretary  of  State,  April  5,  1915 161 

The  Secretary  of  State  to  Ambassador  Gerard,  April  28,  1915 163 

Ambassador  Gerard  to  the  Secretary  of  State,  June  7,  1915 164 

The  Secretary  of  State  to  Ambassador  Gerard,  June  24,  1915 166 

Ambassador  Gerard  to  the  Secretary  of  State,  July  30,  1915 170 

The  Secretary  of  State  to  Ambassador  Gerard,  August  10,  1915...  .  173 

Ambassador  Gerard  to  the  Secretary  of  State,  September  20,  1915..  175 

The  Secretary  of  State  to  Ambassador  Gerard,  October  12,  1915....  177 

Ambassador  Gerard  to  the  Secretary  of  State,  December  2,  1915 179 


viii  CONTENTS 

PAGE 

Case  of  the  Appam: 

The  German  Ambassador  to  the  Secretary  of  State,  February  2,  1916  183 
The  Secretary  of  State  to  the  British  Ambassador,  February  3,  1916  184 

Memorandum  from  the  British  Embassy,  February  4,  1916 184 

Memorandum  from  the  German  Embassy,  received  February  8,  1916  186 

Memorandum  from  the  British  Embassy,  February  12,  1916 186 

Memorandum  from  the  British  Embassy,  February  15,  1916........   187 

The  German  Ambassador  to  the  Secretary  of  State,  February  22,  1916  187 
The  Secretary  of  State  to  the  German  Ambassador,  March  2,  1916. .  189 
The  German  Ambassador  to  the  Secretary  of  State,  March  14,  1916..  192 
The  German  Ambassador  to  the  Secretary  of  State,  March  16,  1916. .  193 
The  British  Ambassador  to  the  Secretary  of  State,  March  31,  1916..  1% 
The  Secretary  of  State  to  the  British  Ambassador,  April  4,  1916. . . .  197 

The  Secretary  of  State  to  the  German  Ambassador,  April  7,  1916 198 

Ambassador  Gerard  to  the  Secretary  of  State,  May  22,  1916 200 

Inclosure — Judgment  of  the  German  Prize  Court,  May  11,  1916.  200 

Proposal  of  the  German  Government  for  an  Addition  to  the  Treaty  of 
1799: 

The  Minister  of  Switzerland  to  the   Secretary  of  State,   February 
10,   1917   202 

The  Secretary  of  Stale  to  the  Minister  of  Switzerland,  March  20,  1917  204 


Texts  of  the  Treaties 


Text  of  the  Treaty  of  17851 


A  TREATY  OF  AMITY  AND  COM- 
MERCE 
Between  his  Majesty  the  King  of 

Prussia  and  the  United  States 

of  America. 

His  Majesty  the  King  of  Prus- 
sia and  the  United  States  of 
America,  desiring  to  fix,  in  a  per- 
manent and  equitable  manner,  the 
rules  to  be  observed  in  the  inter- 
course and  commerce  they  desire 
to  establish  between  their  respec- 
tive countries,  His  Majesty  and 
the  United  States  have  judged 
that  the  said  end  can  not  be  better 
obtained  than  by  taking  the  most 
perfect  equality  and  reciprocity 
for  the  basis  of  their  agreement. 

With  this  view,  His  Majesty  the 
King  of  Prussia  has  nominated 
and  constituted  as  his  Plenipoten- 
tiary, the  Baron  Frederick  Wil- 
liam de  Thulemeier,  his  Privy 
Counsellor  of  Embassy,  and  En- 


TRAITE    D'AMITIE    ET    DE    COM- 
MERCE 

Entre  sa  Majeste  le  Roi  de  Prusse 
et  les  £tats-Unis  de  I'Amerique. 

Sa  Majescte  le  Roi  de  Prusse 
&c.  &c.,  et  les  Etats  Unis  de 
I'Amerique  desirant  de  fixer 
d'une  maniere  permanente  et  equi- 
table les  regies  qui  doivent  etre 
observees  relativement  a  la  corres- 
pondance  et  au  commerce  a  etablir 
entre  les  fitats  respectifs  des  deux 
parties,  sa  Majeste  et  les  Etats 
Unis  ont  cru  ne  pouvoir  mieux 
remplir  ce  but,  qu'en  posant  pour 
base  de  leurs  engagemens  la  plus 
parfaite  egalite  et  reciprocite. 

Dans  cette  vue  Sa  Majeste  le 
roi  de  Prusse  a  nomme  et  cons- 
titue  pour  son  Plenipotentiaire  le 
Baron  Frederic  Guillaume  de 
Thulemeier  son  Conseiller  prive 
d'Ambassade  et  Envoye  extraor- 


1  Concluded  September  10,  1785;  ratified  by  the  Congress  May  17,  1786;  rati- 
fications exchanged  October,  1786.  This  treaty,  as  well  as  those  of  1799  and 
1828,  has  been  compared  with  the  English  and  French  texts  of  the  official 
originals  on  file  in  the  Department  of  State,  which  source  therefore  is  the 
authority  for  the  accuracy  of  the  text  in  each  case.  It  may  also  be  found  in 
U.  S.  Statutes  at  Large,  vol.  8,  p.  84,  and  vol.  18,  pt.  2,  p.  641 ;  and  in  Malloy's 
Treaties,  Conventions,  International  Acts,  Protocols  and  Agreements  between 
the  United  States  and  other  Powers,  1776-1909  (Washington,  1910),  p.  1477. 

This  treaty  expired  by  its  own  limitations  October,  1796,  but  Article  12  was 
revived  by  Article  12  of  the  treaty  of  1828.  See  post,  p.  59. 


4       TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


voy  Extraordinary  with  their 
High  Mightinesses  the  States  Gen-, 
eral  of  the  United  Netherlands ; 
and  the  United  States  have  on 
their  part  given  full  powers  to 
John  Adams,  Esquire,  late  one  of 
their  Ministers  Plenipotentiary  for 
negotiating  a  peace,  heretofore  a 
Delegate  in  Congress  from  the 
State  of  Massachusetts,  and  Chief 
Justice  of  the  same,  and  now  Min- 
ister Plenipotentiary  of  the  United 
States  with  His  Britannic  Maj- 
esty; Doctor  Benjamin  Franklin, 
late  Minister  Plenipotentiary  at 
the  Court  of  Versailles,  and  an- 
other of  their  Ministers  Plenipo- 
tentiary for  negotiating  a  peace; 
and  Thomas  Jefferson,  heretofore 
a  Delegate  in  Congress  from  the 
State  of  Virginia,  and  Governor 
of  the  said  State,  and  now  Min- 
ister Plenipotentiary  of  the  United 
States  at  the  Court  of  His  Most 
Christian  Majesty;  which  respec- 
tive Plenipotentiaries,  after  hav- 
ing exchanged  their  full  powers, 
and  on  mature  deliberation,  have 
concluded,  settled,  and  signed  the 
following  articles : 

ARTICLE  1 

There  shall  be  a  firm,  inviolable, 
and  universal  peace  and  sincere 
friendship  between  His  Majesty 
the  King  of  Prussia,  his  heirs,  suc- 
cessors, and  subjects,  on  the  one 
part,  and  the  United  States  of 
America  and  their  citizens  on  the 


dinaire  aupres  de  L.  H.  P.  les 
Etats  Generaux  des  Provinces- 
Unies;  Et  les  Etats-Unis  ont  de 
leur  cote  pourvu  de  leurs  Plein- 
pouvoirs  le  Sieur  John  Adams  ci- 
devant  1'un  de  leurs  Ministres 
Plenipotentiaires  pour  traiter  de 
la  paix,  Delegue  au  Congres  de  la 
part  de  1'Etat  de  Massachusetts  et 
chef  de  Justice  du  dit  Etat,  actu- 
ellement  Ministre  Plenipotentiaire 
des  Etats  Unis  pres  sa  Majeste  le 
Roi  de  la  Grande  Britagne,  le  Doc- 
teur  Benjamin  Franklin  en  der- 
nier lieu  leur  Ministre  Plenipoten- 
tiare  a  la  Cour  de  S.  M.  T.  C.  et 
aussi  1'un  de  leurs  Ministres  Ple- 
nipotentiaires pour  traiter  de  la 
paix;  Et  le  Sieur  Thomas  Jeffer- 
son, ci-devant  delegue  au  Congres 
de  la  part  de  1'Etat  de  Virginie  et 
gouverneur  du  dit  Etat,  actuelle- 
ment  Ministre  Plenipotentiaire  a 
la  cour  de  S.  M.  T.  C.  lesquels 
Plenipotentiaires  respectifs,  apres 
avoir  echange  leurs  pleinpouvoirs, 
et  en  consequence  d'une  mure  de- 
liberation, ont  conclu,  arrete  et 
signe  les  articles  suivans : 


ARTICLE  1 

II  y  aura  une  Paix  ferme  in- 
violable et  universelle  et  une  ami- 
tie  sincere,  entra  Sa  Majeste  le 
Roi  de  Prusse,  ses  heritiers,  Suc- 
cesseurs  et  Sujets,  d'une  part,  et 
les  Etats-Unis  d'Amerique  et 
leurs  Citoyens,  d'autre  part,  sans 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


other,  without  exception  of  per-     exception    de    personnes    ou    de 
sons  or  places.  lieux. 


ARTICLE  2 

The  subjects  of  His  Majesty 
the  King  of  Prussia  may  frequent 
all  the  coasts  and  countries  of  the 
United  States  of  America,  and  re- 
side and  trade  there  in  all  sorts  of 
produce,  manufactures,  and  mer- 
chandize ;  and  shall  pay  within  the 
said  United  States  no  other  or 
greater  duties,  charges,  or  fees 
whatsoever,  than  the  most  fav- 
oured nations  are  or  shall  be 
obliged  to  pay:  and  they  shall 
enjoy  all  the  rights,  privileges,  and 
exemptions  in  navigation  and  com- 
merce which  the  most  favoured 
nation  does  or  shall  enjoy;  sub- 
mitting themselves  nevertheless  to 
the  laws  and  usages  there  estab- 
lished, and  to  which  are  submitted 
the  citizens  of  the  United  States, 
and  the  citizens  and  subjects  of 
the  most  favoured  nations. 

ARTICLE  3 

In  like  manner  the  citizens  of 
the  United  States  of  America  may 
frequent  all  the  coasts  and  coun- 
tries of  His  Majesty  the  King  of 
Prussia,  and  reside  and  trade 
there  in  all  sorts  of  produce,  man- 
ufactures, and  merchandize ;  and 
shall  pay  in  the  dominions  of  his 
said  Majesty  no  other  or  greater 
duties,  charges,  or  fees  whatso- 


ARTICLE  2 

Les  Sujets  de  Sa  Majeste  le  Roi 
de  Prusse  pourront  frequenter 
toutes  les  cotes  et  tous  les  pays 
des  Etats-Unis  de  1'Amerique,  y 
resider  et  trafiquer  en  toutes  sor- 
tes  de  Productions,  manufactures 
et  Marchandises,  et  ne  payeront 
d'autres  ni  de  plus  forts  impots, 
Charges  ou  droits  dans  les  dits 
Etats-Unis,  que  ceux  que  les  Na- 
tions les  plus  favorisees  sont  ou 
seront  obligees  de  payer;  et  ils 
jouiront  de  tous  les  droits,  privi- 
leges et  exemptions  dans  la  Navi- 
gation et  le  commerce,  dont  jouit 
ou  jouira  la  Nation  la  plus  favo- 
risee ;  se  soumettant  neanmoins 
aux  Loix  et  Usages  y  etablis,  et 
aux  quels  sont  soumis  les  Citoyens 
des  Etats  Unis  et  les  citoyens  et 
Sujets  des  nations  les  plus  favo- 
risees. 

ARTICLE  3 

Pareillement  les  Citoyens  des 
Etats  Unis  de  1'Amerique  pour- 
ront frequenter  toutes  les  cotes  et 
tous  les  Pays  de  sa  Majeste  le  Roi 
de  Prusse,  y  resider  et  trafiquer 
en  toutes  sortes  de  Productions 
Manufactures  et  Marchandises  et 
ne  payeront  d'autres  ni  plus  forts 
impots,  charges  ou  droits  dans  les 
Domaines  de  sa  dite  Majeste,  que 


TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ever  than  the  most  favoured  na- 
tion is  or  shall  be  obliged  to  pay : 
and  they  shall  enjoy  all  the  rights, 
privileges,  and  exemptions  in  navi- 
gation and  commerce  which  the 
most  favoured  nation  does  or  shall 
enjoy ;  submitting  themselves  nev- 
ertheless to  the  laws  and  usages 
there  established,  and  to  which  are 
submitted  the  subjects  of  His  Maj- 
esty the  King  of  Prussia,  and  the 
subjects  and  citizens  of  the  most 
favoured  nations. 

ARTICLE  4 

More  especially  each  party  shall 
have  a  right  to  carry  their  own 
produce,  manufactures,  and  mer- 
chandize in  their  own  or  any  other 
vessels  to  any  parts  of  the  domin- 
ions of  the  other,  where  it  shall  be 
lawful  for  all  the  subjects  or  citi-, 
zens  of  that  other  freely  to  pur- 
chase them ;  and  thence  to  take  the 
produce,  manufactures,  and  mer- 
chandize of  the  other,  which  all 
the  said  citizens  or  subjects  shall 
in  like  manner  be  free  to  sell  them, 
paying  in  both  cases  such  duties, 
charges,  and  fees  only  as  are  or 
shall  be  paid  by  the  most  favoured 
nation.  Nevertheless,  the  King  of 
Prussia  and  the  United  States, 
and  each  of  them,  reserve  to  them- 
selves the  right,  where  any  nation 
restrains  the  transportation  of 
merchandize  to  the  vessels  of  the 
country  of  which  it  is  the  growth 
or  manufacture,  to  establish 


ceux  que  la  Nation  la  plus  favo- 
risee est  ou  sera  obligee  de 
payer;  et  ils  jouiront  des  tous  les 
droits  privileges  et  exemptions 
dans  la  navigation  et  le  commerce, 
dont  jouit  ou  jouira  la  nation  la 
plus  favorisee ;  se  soumettant 
neanmoins  aux  Loix  et  Usages  y 
etablis,  et  aux  quels  sont  soumis 
les  Sujets  de  Sa  Majeste  le  Roi  de 
Prusse;  et  les  Sujets  et  Citoyens 
des  nations  les  plus  favorisees. 


ARTICLE  4 

En  particulier,  chacune  des 
deux  Nations  aura  le  droit  d'im 
porter  ses  propres  productions, 
manufactures  et  Marchandises,  a 
bord  de  ses  propres  batiments  ou 
de  tel  autre,  dans  toutes  les  par- 
ties des  Domaines  de  1'autre  ou 
il  sera  permis  a  tous  les  Sujets  et 
Citoyens  de  1'autre  nation  de  les 
acheter  librement;  comme  aussi 
d'y  charger  les  productions,  manu- 
factures et  marchandises  de  1'au- 
tre que  tous  les  dits  Sujets  ou 
Citoyens  auront  la  liberte  de  leur 
vendre ;  en  payant  dans  Tun  et 
1'autre  cas  tels  impots,  droits  et 
charges  seulement,  que  ceux  qui 
sont  ou  seront  payes  par  la  nation 
la  plus  favorisee.  Cependant  le 
Roi  de  Prusse  et  les  Etats  Unis 
de  I'Amerique,  et  chacun  d'eux  en 
particulier,  se  reservent  le  droit, 
au  cas  que  quelque  nation  res- 
treigne  le  transport  des  marchan- 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


against  such  nations  retaliating 
regulations;  and  also  the  right  to 
prohibit,  in  their  respective  coun- 
tries, the  importation  and  exporta- 
tion of  all  merchandize  whatso- 
ever, when  reasons  of  state  shall 
require  it.  In  this  case,  the  sub- 
jects or  citizens  of  either  of  the 
contracting  parties  shall  not  im- 
port nor  export  the  merchandize 
prohibited  by  the  other ;  but  if  one 
of  the  contracting  parties  permits 
any  other  nation  to  import  or  ex- 
port the  same  merchandize,  the 
citizens  or  subjects  of  the  other 
shall  immediately  enjoy  the  same 
liberty. 


ARTICLE  5 

The  merchants,  commanders  of 
vessels,  or  other  subjects  or  citi- 
zens of  either  party,  shall  not 
within  the  ports  or  jurisdiction  of 
the  other  be  forced  to  unload  any 
sort  of  merchandize  into  any  other 
vessels,  nor  to  receive  them  into 
their  own,  nor  to  wait  for  their 
being  loaded  longer  than  they 
please. 


ARTICLE  6 

That  the  vessels  of  either  party 
loading  within  the  ports  or  juris- 
diction of  the  other  may  not  be 


discs  aux  vaisseaux  des  pays  dont 
elles  sont  la  production  ou  la 
manufacture,  d'etablir  envers 
cette  nation  des  reglemens  recipro- 
ques.  Se  reservant  de  plus  le 
Droit  de  prohiber  dans  leurs  pays 
respectifs  1'importation  ou  1'ex- 
portation  de  toute  marchandise 
quelconque,  des  que  la  raison 
d'Etat  1'exige.  En  ce  cas,  les  Su- 
jets  ou  Citoyens  d'une  des  Parties 
contractantes  ne  pourront  impor- 
ter ni  exporter  les  marchandises 
prohibees  par  1'autre.  Mais  si 
1'une  des  parties  contractantes 
permet  a  quelqu'autre  Nation  d'im- 
porter  ou  d'exporter  ces  memes 
marchandises,  les  Citoyens  ou  Su- 
jets  de  1'autre  partie  contractante 
jouiront  tout  aussitot  d'une  liberte 
pareille. 

ARTICLE  5 

Les  Marchands,  Commandans 
de  vaisseaux,  et  autres  Sujets  ou 
Citoyens  de  chacune  des  deaux  Na- 
tions, ne  seront  pas  forces  dans 
les  ports  ou  dans  la  jurisdiction 
de  1'autre,  de  decharger  aucune 
sorte  de  Marchandises  dans  d'au- 
tres  vaisseaux,  ni  de  les  recevoir 
a  bord  de  leurs  propres  navires,  ni 
d'attendre  leur  chargement  plus 
long-temps  qu'il  ne  leur  plaira. 

ARTICLE  6 

Pour  eviter  que  les  vaisseaux 
de  Tune  des  deux  parties  contrac- 
tantes ne  soyent  point  inutilement 


8      TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


uselessly  harassed  or  detained,  it 
is  agreed  that  all  examinations  of 
goods  required  by  the  laws  shall 
be  made  before  they  are  laden  on 
board  the  vessel,  and  that  there 
shall  be  no  examination  after ;  nor 
shall  the  vessel  be  searched  at  any 
time,  unless  articles  shall  have 
been  laden  therein  clandestinely 
and  illegally,  in  which  case  the 
person  by  whose  order  they  were 
carried  on  board,  or  who  carried 
them  without  order,  shall  be  liable 
to  the  laws  of  the  land  in  which 
he  is ;  but  no  other  person  shall 
be  molested,  nor  shall  any  other 
groods,  nor  the  vessel,  be  seized 
or  detained  for  that  cause. 


ARTICLE  7 

Each  party  shall  endeavour,  by 
all  the  means  in  their  power,  to 
protect  and  desend  [defend]  all 
vessels  and  other  effects  belong- 
ing to  the  citizens  or  subjects  of 
the  other,  which  shall  be  within 
the  extent  of  their  jurisdiction, 
by  sea  or  by  land;  and  shall  use 
all  their  efforts  to  recover,  and 
cause  to  be  restored  to  the  right 
owners,  their  vessels  and  effects 
which  shall  be  taken  from  them 
within  the  extent  of  their  said 
jurisdiction. 


molestes  ou  detenus  dans  les  Ports 
ou  sous  la  Jurisdiction  de  1'autre, 
il  a  etc  convenu  que  la  visite  des 
marchandises,  ordonnee  par  les 
loix,  se  fera  avant  qu'elles  ne 
soyent  chargees  sur  le  navire,  et 
qu'ensuite  elles  ne  seront  plus  as- 
sujetties  a  aucune  visite.  Et  en 
general  il  ne  se  fera  point  de  re- 
cherche a  bord  du  vaisseau,  a 
moins  qu'on  n'y  ait  charge  clan- 
destinement  et  illegalement  des 
marchandises  prohibees.  Dans  ce 
cas,  celui  par  1'ordre  duquel  elles 
ont  ete  porte  a  bord,  ou  celui  qui 
les  y  a  portees  sans  ordre,  sera 
soumis  aux  loix  du  pays  ou  il  se 
trouve,  sans  que  le  reste  de  1'equi- 
page  soit  moleste,  ni  les  autres 
marchandises,  ou  le  vaisseau  saisis 
ou  detenus  par  cette  raison. 

ARTICLE  7 

Chacune  des  deux  parties  con- 
tractantes  tachera,  par  tous  les 
moyens  qui  seront  en  son  pouvoir, 
de  proteger  et  de  defendre  tous  les 
vaisseaux  et  autres  effets  apparte- 
nants  aux  Citoyens  ou  Sujets  de 
1'autre,  et  se  trouvant  dans  1'eten- 
due  de  sa  Jurisdiction  par  mer  ou 
par  terre :  et  elle  employera  tous 
ses  efforts  pour  recouvrer  et  faire 
restituer  aux  Proprietaires  legi- 
times  les  vaisseaux  et  effets  qui 
leur  auront  ete  enleves  dans  1'eten- 
due  de  sa  dite  Jurisdiction. 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


ARTICLE  8 

The  vessels  of  the  subjects  or 
citizens  of  either  party,  coming  on 
any  coast  belonging  to  the  other, 
but  not  willing  to  enter  into  port, 
or  being  entered  into  port,  and  not 
willing  to  unload  their  cargoes  or 
break  bulk,  shall  have  liberty  to 
depart  and  to  pursue  their  voyage 
without  molestation,  and  without 
being  obliged  to  render  account  of 
their  cargo,  or  to  pay  any  duties, 
charges,  or  fees  whatsoever,  ex- 
cept those  established  for  vessels 
entered  into  port,  and  appropriated 
to  the  maintenance  of  the  port  it- 
self, or  of  other  establishments  for 
the  safety  and  convenience  of 
navigators,  which  duties,  charges, 
and  fees  shall  be  the  same,  and 
shall  be  paid  on  the  same  footing 
as  in  the  case  of  subjects  or  citi- 
zens of  the  country  where  they 
are  established. 


ARTICLE  9 

When  any  vessel  of  either  party 
shall  be  wrecked,  foundered,  or 
otherwise  damaged  on  the  coasts, 
or  within  the  dominion  of  the 
other,  their  respective  subjects  or 
citizens  shall  receive,  as  well  for 
themselves  as  for  their  vessels  and 
effects,  the  same  assistance  which 
would  be  due  to  the  inhabitants 
of  the  country  where  the  damage 


ARTICLE  8 

Les  vaisseaux  des  Sujets  ou  ci- 
toyens  d'une  des  deux  parties 
contractantes,  arrivant  sur  une 
cote  appartenante  a  1'autre,  mais 
n'ayant  pas  dessein  d'entrer  au 
prot,  ou,  y  etant  entres  ne  desirant 
pas  de  decharger  leurs  Cargaisons, 
ou  de  rompre  leur  charge,  auront 
la  liberte  de  repartir  et  de  pour- 
suivre  leur  route  sans  empeche- 
ment,  et  sans  etre  obliges  de  ren- 
dre  compte  de  leur  cargaison,  ni 
de  payer  aucuns  impots,  charges 
et  droits  quelconques,  excepte 
ceux  etablis  sur  les  vaisseaux  une 
fois  entres  dans  le  port,  et  des- 
tines a  1'entretien  du  port  meme 
ou  a  d'autres  etablissemens  qui 
ont  pour  but  la  surete  et  la  com- 
modite  des  navigateurs;  lesquels 
droits,  charges  et  impots  seront 
les  memes  et  se  payeront  sur  le 
meme  pied  qu'ils  sont  acquittes 
par  les  Sujets  ou  Citoyens  de  Tetat 
ou  ils  sont  etablis. 

ARTICLE  9 

Au  cas  que  quelque  vaisseau 
appartenant  a  1'une  des  deux  Par- 
ties contractantes  auroit  fait  nau- 
frage,  echoue  ou  souffert  quelque 
autre  Dommage  sur  les  cotes  ou 
sous  la  domination  de  1'autre,  les 
Sujets  ou  Citoyens  respectifs  re- 
cevront,  tant  pour  eux  que  pour 
leurs  vaisseaux  et  effets,  la  meme 
assistance  qui  auroit  ete  fournie 


10    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


happens,  and  shall  pay  the  same 
charges  and  dues  only  as  the  said 
inhabitants  would  be  subject  to 
pay  in  a  like  case ;  and  if  the  oper- 
ations of  repair  shall  require  that 
the  whole  or  any  part  of  their 
cargo  be  unladed,  they  shall  pay 
no  duties,  charges,  or  fees  on  the 
part  which  they  shall  relade  and 
carry  away.  The  antient  and 
barbarous  right  to  wrecks  of  the 
sea  shall  be  entirely  abolished, 
with  respect  to  the  subjects  and 
citizens  of  the  two  contracting 
parties. 

ARTICLE  10 

The  citizens  or  subjects  of  each 
party  shall  have  power  to  dispose 
of  their  personal  goods  within  the 
jurisdiction  of  the  other,  by  testa- 
ment, donation,  or  otherwise ;  and 
their  representatives,  being  sub- 
jects or  citizens  of  the  other  party, 
shall  succeed  to  their  said  personal 
goods,  whether  by  testament  or  ab 
intestato,  and  may  take  possession 
thereof  either  by  themselves  or  by 
others  acting  for  them,  and  dis- 
pose of  the  same  at  their  will,  pay- 
ing such  dues  only  as  the  inhabi- 
tants of  the  country  wherein  the 
said  goods  are  shall  be  subject  to 
pay  in  like  cases.  And  in  case  of 
the  absence  of  the  representative, 
such  care  shall  be  taken  of  the 
said  goods,  and  for  so  long  a  time 
as  would  be  taken  of  the  goods  of 


aux  habitans  du  Pays  ou  1'accident 
arrive;  et  ils  payeront  seulement 
les  memes  charges  et  droits,  aux- 
quels  les  dits  habitants  auroient 
ete  assujettis  en  pareil  cas.  Et  si 
la  reparation  du  vaisseau  exigeoit 
que  la  cargaison  fut  dechargee  en 
tout  ou  en  partie,  ils  ne  payeront 
aucun  impot,  charge  ou  droit  de 
ce  qui  sera  rembarque  et  emporte. 
L'ancien  et  barbare  droit  de  nau- 
frage  sera  entierement  aboli  a 
1'egard  des  Sujets  ou  Citoyens  des 
deux  Parties  contractantes. 


ARTICLE  10 

Les  Citoyens  ou  Sujets  de  Tune 
des  deux  parties  contractantes 
auront  dans  les  fitats  de  1'autre,  la 
Liberte  de  disposer  de  leurs  biens 
personnels,  soit  par  testament,  do- 
nation ou  autrement,  et  leurs  heri- 
tiers  etant  Sujets  ou  Citoyens  de 
1'autre  partie  contractante,  suc- 
cederont  a  leurs  biens,  soit  en 
vertu  d'un  Testament,  ou  ab  in- 
testat,  et  ils  pourront  en  prendre 
possession,  soit  en  personne,  soit 
par  d'autres  agissant  en  leur  place, 
et  en  disposeront  a  leur  volonte, 
en  ne  payant  d'autres  droits  que 
ceux  auxquels  les  habitants  du 
pays  ou  la  succession  est  de  venue 
vacante,  sont  assujettis  en  pa- 
reille  occurrence.  Et  en  cas  d'ab- 
sence  des  Heritiers,  on  prendra 
aussi  longtemps  des  biens  qui  leur 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


11 


a  native  in  like  case,  until  the  law- 
ful owner  may  take  measures  for 
receiving  them.  And  if  question 
shall  arise  among  several  claim- 
ants to  which  of  them  the  said 
goods  belong,  the  same  shall  be 
decided  finally  by  the  laws  and 
judges  of  the  land  wherein  the 
said  goods  are.  And  where,  on 
the  death  of  any  person  holding 
real  estate  within  the  territories  of 
the  one  party,  such  real  estate 
would  by  the  laws  of  the  land 
descend  on  a  citizens  or  subject  of 
the  other,  were  he  not  disqualified 
by  alienage,  such  subject  shall  be 
allowed  a  reasonable  time  to  sell 
the  same,  and  to  withdraw  the 
proce[e]ds  without  molestation, 
and  exempt  from  all  rights  of  de- 
traction on  the  part  of  the  Govern- 
ment of  the  respective  States.  But 
this  article  shall  not  derogate  in 
any  manner  from  the  force  of  the 
laws  already  published  or  here- 
after to  be  published,  by  His  Maj- 
esty the  King  of  Prussia,  to  pre- 
vent the  emigration  of  his  sub- 
jects. 


ARTICLE  11 

The  most  perfect  freedom  of 
conscience  and  of  worship  is 
granted  to  the  citizens  or  subjects 


sont  echus,  les  memes  soins  qu'on 
auroit  pris  en  pareille  occasion 
des  biens  des  natifs  du  Pays, 
jusqu'a  ce  que  le  Proprietaire  legi- 
time  ait  agree  des  arrangemens 
pour  recuillir  1'heritage.  S'il 
s'eleve  des  contestations  entre 
differens  pretendans  ayant  droit 
a  la  Succession,  elles  seront  deci- 
dees  en  dernier  ressort  selon  les 
loix  et  par  les  Judges  du  Pays  ou 
la  Succession  est  vacante.  Et  si 
par  la  mort  de  quelque  personne 
possedant  des  biens-fonds  sur  le 
territoire  de  1'une  des  parties  con- 
tractantes,  ces  biens-fonds  ve- 
noient  a  passer,  selon  les  loix  du 
Pays,  a  un  citoyen  ou  sujet  de  1'au- 
tre  Partie,  celui-ci,  si  par  sa  qualite 
d'etranger,  il  est  inhabile  de  les 
posseder,  obtiendra  un  delai  conve- 
nable  pour  les  vendre  et  pour  en 
retirer  le  provenu,  sans  obstacle, 
exempt  de  tout  droit  de  retenue, 
de  la  part  du  gouvernement  des 
Etats  respectifs.  Mais  cet  article 
ne  derogera  en  aucune  maniere  a 
la  force  des  Loix  qui  ont  deja  ete 
publiees  ou  qui  le  seront  dans  la 
suite  par  sa  Majeste  le  Roi  de 
Prusse,  pour  prevenir  1'emigration 
de  ses  sujets. 

ARTICLE  11 

II  sera  accorde  la  plus  parfaite 
liberte  de  conscience  et  de  culte 
aux  citoyens  et  sujets  de  chaque 


of  either  party  within  the  jurisdic-     partie  contractante  dans  les  Etats 


12    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


tion  of  the  other,  without  being 
liable  to  molestation  in  that  re- 
spect for  any  cause  other  than  an 
insult  on  the  religion  of  others. 
Moreover,  when  the  subjects  or 
citizens  of  the  one  party  shall  die 
within  the  jurisdiction  of  the 
other,  their  bodies  shall  be  buried 
in  the  usual  burying-grounds  or 
other  decent  and  suitable  places, 
and  shall  be  protected  from  viola- 
tion or  disturbance. 


de  1'autre,  et  personne  ne  sera 
moleste  a  cet  egard  pour  quelque 
cause  que  ce  soit,  si  ce  n'est  pour 
insulte  faite  a  la  Religion  de  1'au- 
tre. De  plus,  si  des  sujets  et  cito- 
yens  de  1'une  des  parties  contrac- 
tantes  venoient  a  mourir  dans  la 
Jurisdiction  de  1'autre,  leurs  corps 
seront  enterres  dans  les  endroits 
ou  Ton  a  coutume  de  faire  les  en- 
terremens,  ou  dans  tel  autre  lieu 
decent  et  convenable,  et  ils  seront 
proteges  centre  toute  violence  et 
trouble. 


ARTICLE  12 

If  one  of  the  contracting  parties 
should  be  engaged  in  war  with 
any  other  Power,  the  free  inter- 
course and  commerce  of  the  sub- 
jects or  citizens  of  the  party  re- 
maining neuter  with  the  belligerent 
Powers  shall  not  be  interrupted. 
On  the  contrary,  in  that  case,  as  in 
full  peace,  the  vessels  of  the  neu- 
tral party  may  navigate  freely  to 
and  from  the  ports  and  on  the 
coasts  of  the  belligerent  parties, 
free  vessels  making  free  goods,  in- 
somuch that  all  things  shall  be 
adjudged  free  which  shall  be  on 
board  any  vessel  belonging  to  the 
neutral  party,  although  such  things 
belong  to  an  enemy  of  the  other; 
and  the  same  freedom  shall  be  ex- 
tended to  persons  who  shall  be  on 
board  a  free  vessel,  although  they 
should  be  enemies  to  the  other 


ARTICLE  12 

Si  1'une  des  Parties  contractantes 
etoit  en  guerre  avec  une  autre 
Puissance,  la  libre  correspondence 
et  le  Commerce  des  citoyens  ou 
sujets  de  la  partie  qui  demeure 
neutre  envers  les  puissances  belli- 
gerantes,  ne  seront  point  interrom- 
pus.  Au  contraire,  et  dans  ce  cas 
comme  en  pleine  paix,  les  vais- 
seaux  de  la  Partie  neutre  pourront 
naviger  en  toute  surete  dans  les 
Ports  et  sur  les  cotes  des  Puis- 
sances belligerantes ;  les  vaisseaux 
libres  rendant  les  marchandises 
libres,  en  tant  qu'on  regardera 
comme  libre  tout  ce  qui  sera  a 
bord  d'un  navire  appartenant  a  la 
partie  neutre,  quand  meme  ces  ef- 
fets  appartiendroient  a  1'ennemi 
de  1'autre.  La  meme  liberte 
s'etendra  aux  Personnes  qui  se 
trouveront  a  bord  d'un  vaisseau 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


13 


party,  unless  they  be  soldiers  in 
actual  service  of  such  enemy. 


ARTICLE  13 

And  in  the  same  case  of  one  of 
the  contracting  parties  being  en- 
gaged in  war  with  any  other 
Power,  to  prevent  all  the  difficul- 
ties and  misunderstandings  that 
usually  arise  respecting  the  mer- 
chandize heretofore  called  contra- 
band, such  as  arms,  ammunition, 
and  military  stores  of  every  kind, 
no  such  articles  carried  in  the  ves- 
sels, or  by  the  subjects  or  citizens 
of  one  of  the  parties  to  the  enemies 
of  the  other,  shall  be  deemed  con- 
traband, so  as  to  induce  confisca- 
tion or  condemnation  and  a  loss  of 
property  to  individuals.  Never- 
theless, it  shall  be  lawful  to  stop 
such  vessels  and  articles,  and  to 
detain  them  for  such  length  of 
time  as  the  captors  may  think 
necessary  to  prevent  the  incon- 
venience or  damage  that  might 
ensue  from  their  proceeding,  pay- 
ing, however,  a  reasonable  com- 
pensation for  the  loss  such  arrest 
shall  occasion  to  the  proprietors: 
And  it  shall  further  be  allowed  to 
use  in  the  service  of  the  captors 
the  whole  or  any  part  of  the  mili- 
tary stores  so  detained,  paying  the 
owners  the  full  value  of  the  same, 
to  be  ascertained  by  the  current 


libre,  quand  memes  elles  seroient 
ennemis  de  1'autre  Partie,  excepte 
que  ce  fussent  des  gens  de  guerre, 
actuellement  au  service  de  1'en- 
nemi. 

ARTICLE  13 

Dans  le  cas  ou  Tune  des  Parties 
contractantes  se  trouveroit  en 
guerre  avec  une  autre  Puissance, 
il  a  etc  convenu  que  pour  preve- 
nir  les  difficultes  et  les  discussions 
qui  surviennent  ordinairement  par 
rapport  aux  Marchandises  ci-de- 
vant appellees  de  contrebande, 
telles  que  armes,  munitions,  et 
autres  provisions  de  guerre  de 
toute  espece,  aucun  de  ces  articles, 
charges  a  bord  des  vaisseaux  des 
Citoyens  ou  Sujets  de  1'une  des 
parties,  et  destines  pour  1'ennemi 
de  1'autre,  ne  sera  cense  de  con- 
trebande, au  point  d'impliquer 
confiscation  ou  condamnation,  et 
d'entrainer  la  perte  de  la  propriete 
des  individus.  Neanmoins  il  sera 
permis  d'arreter  ces  sortes  de 
vaisseaux  et  effets,  et  de  les  re- 
tenir  pendant  tout  le  temps  que  le 
preneur  croira  necessaire  pour 
prevenir  les  inconveniens  et  le 
Dommage  qui  pourroient  en  re- 
suiter  autrement;  mais  dans  ce 
cas  on  accordera  une  compensa- 
tion raisonable  pour  les  pertes  qui 
auront  etc  occasionnees  par  la  sai- 
sie.  Et  il  sera  permis  en  outre 
aux  Preneurs  d'employer  a  leur 
service,  en  tout  ou  en  partie,  les 


14    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


price  at  the  place  of  its  destination. 
But  in  the  case  supposed,  of  a 
vessel  stopped  for  articles  hereto- 
fore deemed  contraband,  if  the 
master  of  the  vessel  stopped  will 
deliver  out  the  goods  supposed  to 
be  of  contraband  nature,  he  shall 
be  admitted  to  do  it,  and  the  vessel 
shall  not  in  that  case  be  carried 
into  any  port,  nor  further  de- 
tained, but  shall  be  allowed  to 
proceed  on  her  voyage. 


ARTICLE  14 

And  in  the  same  case  where  one 
of  the  parties  is  engaged  in  war 
with  another  Power,  that  the  ves- 
.sels  of  the  neutral  party  may  be 
readily  and  certainly  known,  it  is 
agreed  that  they  shall  be  provided 
with  sea-letters  or  passports,  which 
shall  express  the  name,  the  prop- 
erty, and  burthen  of  the  vessel,  as 
also  the  name  and  dwelling  of  the 
master;  which  passports  shall  be 
made  out  in  good  and  due  forms 
(to  be  settled  by  conventions  be- 
tween the  parties  whenever  occa- 
sion shall  require,)  shall  be  re- 
newed as  often  as  the  vessel  shall 
return  into  port,  and  shall  be  ex- 
hibited whensoever  required,  as 
well  in  the  open  sea  as  in  port. 
But  if  the  said  vessel  be  under 
convoy  of  one  or  more  vessels  of 
war  belonging  to  the  neutral  party, 
the  simple  declaration  of  the  officer 


munitions  militaires  detenues,  en 
en  payant  aux  Proprietaires  la 
pleine  valeur,  a  determiner  sur  le 
prix  qui  aura  cours  a  1'endroit  de 
leur  destination;  mais  que  dans 
le  cas  enonce,  d'un  vaisseau  arrete 
pour  des  articles  ci-devant  appel- 
les  contrebande,  si  le  maitre  du 
navire  consentoit  a  delivrer  les 
marchandises  suspectes,  il  aura  la 
Liberte  de  le  faire,  et  le  navire  ne 
sera  plus  amene  dans  le  port,  ni 
detenu  plus  long-temps,  mais  aura 
toute  Liberte  de  poursuivre  sa 
route. 

ARTICLE  14 

Dans  le  cas  ou  Tune  des  deux 
parties  contractantes  se  trouveroit 
engagee  dans  une  guerre  avec  une 
autre  Puissance,  et  afin  que  les 
vaisseaux  de  la  partie  neutre  so- 
yent  promptement  et  surement 
reconnus,  on  est  convenu  qu'ils 
devront  etre  munis  de  lettres  de 
mer  ou  Passeports,  exprimant  le 
nom  le  proprietaire,  et  le  port  du 
navire,  ainsi  que  le  nom  et  la  de- 
meure  du  maitre.  Ces  Passeports, 
qui  seront  expedies  en  bonne  et 
due  forme  (a  determiner  par  des 
conventions  entre  les  Parties,  lors- 
que  1'occasion  le  requerra)  de- 
vront etre  renouvelles  toutes  les 
fois  que  le  vaisseau  retournera 
dans  son  port,  et  seront  exhibes  a 
chaque  requisition  tant  en  pleine 
mer  que  dans  le  port.  Mais  si  le 
navire  se  trouve  sous  le  convoi 
d'un  ou  plusieurs  vaisseaux  de 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


15 


commanding  the  convoy,  that  the 
said  vessel  belongs  to  the  party  of 
which  he  is,  shall  be  considered  as 
establishing  the  fact,  and  shall  re- 
lieve both  parties  from  the  trouble 
of  further  examination. 


guerre  appartenants  a  la  partie 
neutre,  il  suffira  que  1'officier  com- 
mandant du  convoi  declare  que  le 
navire  est  de  son  parti  moyennant 
quoi  cette  simple  declaration  sera 
censee  etablir  le  fait,  et  dispen- 
sera  les  deux  parties  de  toute  vis- 
ite  ulterieure. 


ARTICLE  15 

And  to  prevent  entirely  all  dis- 
order and  violence  in  such  cases, 
It  is  stipulated,  that  when  the  ves- 
sels of  the  neutral  party,  sailing 
without  convoy,  shall  be  met  by 
any  vessel  of  war,  public  or  pri- 
vate, of  the  other  party,  such 
vessel  of  war  shall  not  approach 
within  cannon-shot  of  the  said 
neutral  vessel,  nor  send  more  than 
two  or  three  men  in  their  boat 
on  board  the  same,  to  examine  her 
sea-letters  or  passports.  And  all 
persons  belonging  to  any  vessel  of 
war,  public  or  private,  who  shall 
molest  or  injure  in  any  manner 
whatever  the  people,  vessels,  or 
effects  of  the  other  party,  shall  be 
responsible  in  their  persons  and 
property  for  damages  and  interest, 
sufficient  security  for  which  shall 
be  given  by  all  commanders  of 
private  armed  vessels  before  they 
are  commissioned. 


ARTICLE  15 

Pour  prevenir  entierement  tout 
desordre  et  toute  violence  en  pa- 
reil  cas,  il  a  etc  stipule  que  lors 
que  des  navires  de  la  Partie  neu- 
tre, navigeans  sans  convoi,  re- 
contreront  quelque  vaisseau  de 
guerre  public  ou  particulier  de 
1'autre  partie,  le  vaisseau  de 
guerre  n'approchera  le  navire 
neutre  qu'au  dela  de  la  portee  du 
canon,  et  n'enverra  pas  plus  de 
deux  ou  trois  hommes  dans  sa 
chaloupe  a  bord,  pour  examiner 
les  Lettres  de  Mer  ou  Passeports. 
Et  toutes  les  personnes  apparte- 
nantes  a  quelque  vaisseau  de 
guerre  public  ou  particulier,  qui 
molesteront  ou  insulteront  en 
quelque  maniere  que  ce  soit  1'equi- 
page,  les  vaisseaux  ou  effets  de 
1'autre  Partie,  seront  responsables 
en  leurs  personnes  et  en  leurs 
biens,  de  tous  dommages  et  inte- 
rets ;  pour  lesquels  il  sera  donne 
caution  suffisante  par  tous  les 
commandans  de  vaisseaux  armes 
en  course,  avant  qu'ils  re<;oivent 
leurs  commissions. 


16    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ARTICLE  16 

It  is  agreed  that  the  subjects  or 
citizens  of  each  of  the  contracting 
parties,  their  vessels  and  effects, 
shall  not  be  liable  to  any  embargo 
or  detention  on  the  part  of  the 
other,  for  any  military  expedition, 
or  other  public  or  private  purpose 
whatsoever.  And  in  all  cases  of 
seizure,  detention,  or  arrests  for 
debts  contracted  or  offences  com- 
mitted by  any  citizen  or  subject 
of  the  one  party,  within  the  juris- 
diction of  the  other,  the  same 
shall  be  made  and  prosecuted  by 
order  and  authority  of  law  only, 
and  according  to  the  regular  course 
of  proceedings  usual  in  such  cases. 

ARTICLE  17 

If  any  vessel  or  effects  of  the 
neutral  Power  be  taken  by  an 
enemy  of  the  other,  or  by  a  pirate, 
and  retaken  by  that  other,  they 
shall  be  brought  into  some  port  of 
one  of  the  parties,  and  delivered 
into  the  custody  of  the  officers  of 
that  port,  in  order  to  be  restored 
entire  to  the  true  proprietor,  as 
soon  as  due  proof  shall  be  made 
concerning  the  property  thereof. 


ARTICLE  18 

If  the  citizens  or  subjects  of 
either  party,  in  danger  from  tem- 
pests, pirates,  enemies,  or  other 
accident,  shall  take  refuge  with 


ARTICLE  16 

II  a  etc  convenu  que  les  Sujets 
ou  Citoyens  de  1'une  des  parties 
contractantes,  leurs  vaisseaux  ni 
effets,  ne  pourront  etre  assujettis 
a  aucun  embargo,  ni  retenus  de  la 
part  de  1'autre  pour  quelque  ex- 
pedition militaire,  usage  public  ou 
particulier  de  qui  que  ce  soit.  Et 
dans  les  cas  de  saisie,  de  deten- 
tion, ou  d'arret,  soit  pour  dettes 
contractees,  ou  offenses  commises 
par  quelque  citoyen  ou  sujet  de 
1'une  des  parties  contractantes 
dans  la  Jurisdiction  de  1'autre,  on 
procedera  uniquement  par  ordre 
et  autorite  de  la  Justice  et  suivant 
les  voyes  ordinaires  en  pareil  cas 
usitees. 

ARTICLE  17 

S'il  arrivoit  que  les  Batiniens  ou 
effets  de  la  puissance  neutre  fus- 
sent  pris  par  1'ennemi  de  1'autre, 
ou  par  un  Pirate,  et  ensuite  repris 
par  la  Puissance  en  guerre,  ils  se- 
ront  conduits  dans  un  Port  de 
1'une  des  deux  Parties  contractan- 
tes et  remis  a  la  garde  des  officiers 
du  Port,  afin  d'etre  restitues  en 
entier  au  proprietaire  legitime,  des 
qu'il  aura  duement  constate  son 
droit  de  propriete. 

ARTICLE  18 

Lorsque  les  Citoyens  ou  Sujets 
de  1'une  des  deux  parties  contrac- 
tantes seront  forces  par  des  tem- 
petes,  par  la  poursuite  des  cor- 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


17 


their  vessels  or  effects,  within  the 
harbours  or  jurisdiction  of  the 
other,  they  shall  be  received,  pro- 
tected, and  treated  with  humanity 
and  kindness,  and  shall  be  per- 
mitted to  furnish  themselves,  at 
reasonable  prices,  with  all  refresh- 
ments, provisions,  and  other  things 
necessary  for  their  sustenance, 
hea[l]th,  and  accommodation,  and 
for  the  repair  of  their  vessels. 


ARTICLE  19 

The  vessels  of  war,  public  and 
private,  of  both  parties,  shall  carry 
freely  wheresoever  they  please  the 
vessels  and  effects  taken  from  their 
enemies,  without  being  obliged  to 
pay  any  duties,  charges,  or  fees  to 
officers  of  admiralty,  of  the  cus- 
toms, or  any  others ;  nor  shall  such 
prizes  be  arrested,  searched,  or  put 
under  legal  process,  when  they 
come  to  and  enter  the  ports  of  the 
other  party,  but  may  freely  be  car- 
ried out  again  at  any  time  by  their 
captors  to  the  places  expressed  in 
their  commissions,  which  the  com- 
manding officer  of  such  vessel  shall 
be  obliged  to  shew.  But  no  vessel 
which  shall  have  made  prizes  on 
the  subjects  of  His  Most  Christian 
Majesty  the  King  of  France  shall 
have  a  right  of  asylum  in  the  ports 
or  havens  of  the  said  United 
States ;  and  if  any  such  be  forced 
therein  by  tempest  or  dangers  of 


saires  ou  vaisseaux  ennemis,  ou 
par  quelqu'  autre  accident,  a  se 
refugier  avec  leurs  vaisseaux  ou 
effets  dans  les  havres,  ou  dans  la 
Jurisdiction  de  1'autre,  ils  seront 
rec.us,  proteges  et  traites  avec 
humanite  et  honnetete.  II  leur 
sera  permis  de  se  pourvoir  a  un 
prix  raisonable  de  rafraichisse- 
mens,  de  provisions  et  de  toutes 
choses  necessaires  pour  leur  sub- 
sistance?  sante  et  commodite,  et 
pour  la  reparation  de  leurs  vais- 
seaux. 

ARTICLE  19 

Les  vaisseaux  de  Guerre  publics 
et  particuliers  des  deux  parties 
contractantes,  pourront  conduire 
en  toute  Liberte,  par  tout  ou  il  leur 
plaira,  les  vaisseaux  et  effets  qu'ils 
auront  pris  sur  leurs  ennemis, 
sans  etre  obliges  de  payer  aucuns 
impots,  charges  ou  droits  aux 
officiers  de  I'amiraute,  des  doua- 
nes  ou  autres.  Ces  prises  ne 
pourront  etre  non  plus  ni  arretees, 
ni  visitees,  ni  soumises  a  des  pro- 
cedures legales,  en  entrant  dans 
le  port  de  1'autre  partie,  mais  elles 
pourront  en  sortir  librement,  et 
etre  conduites  en  tout  temps  par 
le  vaisseau  preneur  aux  endroits 
portes  par  les  commissions,  dont 
Pofficier  commandant  le  dit  vais- 
seau sera  oblige  de  faire  montre. 
Mais  tout  vaisseau  qui  aura  fait 
des  prises  sur  les  sujets  de  S.  M. 
T.  C.  le  Roi  de  France,  ne  sauroit 
obtenir  un  droit  d'asile  dans  les 


18    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


the  sea,  they  shall  be  obliged  to 
depart  as  soon  as  possible,  accord- 
ing to  the  tenor  of  the  treaties 
existing  between  his  said  Most 
Christian  Majesty  and  the  said 
United  States. 

ARTICLE  20 

No  citizen  or  subject  of  either 
of  the  contracting  parties  shall 
take  from  any  Power  with  which 
the  other  may  be  at  war  any  com- 
mission or  letter  of  marque  for 
arming  any  vessel  to  act  as  a  pri- 
vateer against  the  other,  on  pain  of 
being  punished  as  a  pirate;  nor 
shall  either  party  hire,  lend,  or  give 
any  part  of  their  naval  or  military 
force  to  the  enemy  of  the  other, 
to  aid  them  offensively  or  defen- 
sively against  that  other. 


ARTICLE  21 

If  the  two  contracting  parties 
should  be  engaged  in  war  against 
a  common  enemy,  the  following 
points  shall  be  observed  between 
them: 

1.  If  a  vessel  of  one  of  the  par- 
ties retaken  by  a  privateer  of  the 
other  shall  not  have  been  In  pos- 
session of  the  enemy  more  than 
twenty-four  hours,  she  shall  be  re- 
stored to  the  first  owner  for  one- 
third  of  the  value  of  the  vessel  and 
cargo;  but  if  she  shall  have  been 


ports  ou  havres  des  Etats  Unis ; 
et  s'il  etoit  force  d'y  entrer  par 
des  tempetes  ou  dangers  de  mer,  il 
sera  oblige  d'en  repartir  le  plutot 
possible,  conformement  a  la  te- 
neur  des  traites  subsistants  entre 
S.  M.  T.  C.  et  les  Etats  Unis. 

ARTICLE  20 

Aucun  Citoyen  ou  sujet  de  Tune 
des  deux  Parties  contractantes 
n'acceptera  d'une  Puissance  avec 
laquelle  1'autre  pourroit  etre  en 
guerre,  ni  commission,  ni  lettra 
de  marque,  pour  armer  en  course 
contre  cette  derniere,  sous  peine 
d'etre  puni  comme  pirate.  Et  ni 
1'un  ni  1'autre  des  deux  Etats  ne 
louera,  pretera  ou  donnera  une 
partie  de  ses  forces  navales  ou 
militaires  a  1'ennemi  de  1'autre, 
pour  1'aider  a  agir  offensivement 
ou  defensivement  contre  1'etat  qui 
est  en  guerre. 

ARTICLE  21 

S'il  arrivoit  que  les  deux  parties 
contractantes  fussent  en  meme 
temps  en  guerre  contre  un  ennemi 
commun,  on  observera  de  part  et 
d'autre  les  points  suivants. 

1.°  Si  les  Batimens  de  Tune  des 
deux  nations  repris  par  les  arma- 
teurs  de  1'autre,  n'ont  pas  ete  au 
pouvoir  de  1'ennemi  au  de  la  de 
24  heures,  ils  seront  restitues  au 
premier  proprietaire  moyennant 
le  payement  du  tiers  de  la  valeur 
du  Batiment  et  de  la  Cargaison. 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


19 


more  than  twenty-four  hours  in 
possession  of  the  enemy,  she  shall 
belong  wholly  to  the  recaptor. 

2.  If  in  the  same  case  the  recap- 
ture were  by  a  public  vessel  of  war 
of  the  one  party,  restitution  shall 
be  made  to  the  owner  for  one- 
thirtieth  part  of  the  value  of  the 
vessel  and  cargo,  if  she  shall  not 
have   been   in  possession   of   the 
enemy     more    than    twenty- four 
hours,  and  one-tenth  of  the  said 
value  where  she  shall  have  been 
longer;  which  sums  shall  be  dis- 
tributed in  gratuities  to  the  recap- 
tors. 

3.  The  restitution  in  the  cases 
aforesaid  shall  be  after  due  proof 
of  property,  and  surety  given  for 
the  part  to  which  the  recaptors  are 
entitled. 

4.  The  vessels   of   war,  public 
and  private,   of  the  two  parties, 
shall  be  reciprocally  admitted  with 
their    prizes    into    the    respective 
ports  of  each ;  but  the  said  prizes 
shall  not  be  discharged  nor  sold 
there,  until  their  legality  shall  have 
been  decided,  according  to  the  laws 
and  regulations  of  the  States  to 
which  the  captor  belongs,  but  by 
the  judicatures  of  the  place  into 
which  the  prize  shall  have  been 
conducted. 

5.  It  shall  be  free  to  each  party 
to  make  such  regulations  as  they 
shall  judge  necessary  for  the  con- 
duct of  their  respective  vessels  of 
war,  public  and  private,  relative  to 


si  au  contraire  le  vaisseau  repris 
a  ete  plus  de  24  heures  au  pouvoir 
de  1'ennemi,  il  appartiendra  en  en- 
tier  a  celui  qui  1'a  repris.  2.°  Dans 
le  cas  qu'un  navire  est  repris  par 
un  vaisseau  de  guerre  de  Tune 
des  puissances  contractantes,  il 
sera  rendu  au  proprietaire,  mo- 
yennant  qu'il  paye  un  trentieme 
du  navire  et  de  la  cargaison,  si  le 
batiment  n'a  pas  ete  plus  de  24 
heures  au  pouvoir  de  1'ennemi,  et 
le  dixieme  de  cette  valeur,  s'il  y  a 
ete  plus  long-temps,  lesquelles 
sommes  seront  distributes  en 
guise  de  gratification  a  ceux  qui 
1'auront  repris.  3.°  Dans  ces  cas 
la  restitution  n'aura  lieu  qu'apres 
les  preuves  faites  de  la  propriete, 
sous  caution  de  la  quote-part  qui 
en  revient  a  celui  qui  a  repris  le 
navire.  4°.  Les  vaisseaux  de  guerre 
publics  et  particuliers  des  deux 
Parties  contractantes  seront  admis 
reciproquement  avec  leurs  prises 
dans  les  ports  respectif s ;  cepen- 
dant  ces  prises  ne  pourront  y  etre 
dechargees  ni  vendues.  qu'apres 
que  la  legitimate  de  la  prise  aura 
ete  decidee  suivant  les  loix  et  re- 
glemens  de  1'etat  dont  le  preneur 
est  sujet,  mais  par  la  Justice  du 
lieu  ou  la  prise  aura  ete  conduite. 
5.°  II  sera  libre  a  chacune  des  par- 
ties contractantes  de  faire  tels  re- 
glemens  qu'elles  jugeront  neces- 
saires,  relativement  a  la  conduite 
que  devront  tenir  respectivement 
leurs  vaisseaux  de  guerre  publics 


20    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


the  vessels  which  they  shall  take 
and  carry  into  the  ports  of  the  two 
parties. 

ARTICLE  22 

Where  the  parties  shall  have  a 
common  enemy,  or  shall  both  be 
neutral,  the  vessels  of  war  of  each 
shall  upon  all  occasions  take  under 
their  protection  the  vessels  of  the 
other  going  the  same  course,  and 
shall  defend  such  vessels  as  long 
as  they  hold  the  same  course 
against  all  force  and  violence,  in 
the  same  manner  as  they  ought  to 
protect  and  defend  vessels  belong- 
ing to  the  party  of  which  they  are. 


ARTICLE  23 

If  war  should  arise  between  the 
two  contracting  parties,  the  mer- 
chants of  either  country  then  re- 
siding in  the  other  shall  be  allowed 
to  remain  nine  months  to  collect 
their  debts  and  settle  their  affairs, 
and  may  depart  freely,  carrying 
off  all  their  effects  without  mo- 
lestation or  hindrance.  And  all 
women  and  children,  scholars  of 
every  faculty,  cultivators  of  the 
earth,  artizans,  manufacturers, 
and  fishermen, unarmed  and  inhab- 
iting unfortified  towns,  villages,  or 
places,  and  in  general  all  others 
whose  occupations  are  for  the 
common  subsistence  and  benefit  of 
mankind,  shall  be  allowed  to  con- 


et  particuliers,  a  1'egard  des  Bati- 
ments  qu'ils  auront  pris  et  ame- 
nes  dans  les  ports  des  deux  Puis- 
sances. 

ARTICLE  22 

Lorsque  les  parties  contractan- 
tes  seront  engagees  en  guerre  con- 
tre  un  ennemi  commun,  ou  qu'el- 
les  seront  neutres  toutes  deux,  les 
vaisseaux  de  guerre  de  Fune,  pren- 
dront,  en  toute  occasion  sous  leur 
protection,  les  navires  de  1'autre, 
qui  font  avec  eux  la  meme  route, 
et  ils  les  defendront,  aussi  long- 
temps  qu'ils  f  eront  voile  ensemble, 
centre  toute  force  et  violence  et 
de  la  meme  maniere  qu'ils  prote- 
geroient  et  defendroient  les  navi- 
res de  leur  propre  nation. 

ARTICLE  23 

S'il  survient  une  guerre  entre 
les  parties  contractantes,  les  mar- 
chands  de  Tun  des  deux  Etats  qui 
resideront  dans  1'autre,  auront  la 
permission  d'y  rester  encore  neuf 
mois,  pour  recueillir  leurs  dettes 
actives,  et  arranger  leurs  affaires ; 
apres  quoi  ils  pourront  partir  en 
toute  liberte  et  emporter  tous 
leurs  biens,  sans  etre  molestes  ni 
empeches.  Les  femmes  et  les  en- 
fans,  les  gens  de  lettres  de  toutes 
les  facultes,  les  cultivateurs,  arti- 
sans, manufacturiers  et  Pecheurs, 
qui  ne  sont  point  armes  et  qui 
habitent  des  villes,  villages  ou 
places  qui  ne  sont  pas  fortifies,  et 
en  general  tous  ceux  dont  la  voca- 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


21 


tinue  their  respective  employ- 
ments, and  shall  not  be  molested 
in  their  persons,  nor  shall  their 
houses  or  goods  be  burnt  or  other- 
wise destroyed,  nor  their  fields 
wasted  by  the  armed  force  of  the 
enemy,  into  whose  power  by  the 
events  of  war  they  may  happen  to 
fall ;  but  if  anything  is  necessary 
to  be  taken  from  them  for  the  use 
of  such  armed  force,  the  same 
shall  be  paid  for  at  a  reasonable 
price.  And  all  merchant  and  trad- 
ing vessels  employed  in  exchang- 
ing the  products  of  different 
places,  and  thereby  rendering  the 
necessaries,  conveniences,  and 
comforts  of  human  life  more  easy 
to  be  obtained,  and  more  general, 
shall  be  allowed  to  pass  free  and 
unmolested;  and  neither  of  the 
contracting  Powers  shall  grant  or 
issue  any  commissions  to  any  pri- 
vate armed  vessels,  empowering 
them  to  take  or  destroy  such  trad- 
ing vessels  or  interrupt  such  com- 
merce. 


ARTICLE  24 

And  to  prevent  the  destruction 
of  prisoners  of  war,  by  sending 
them  into  distant  and  inclement 
countries,  or  by  crouding  them 
into  close  and  noxious  places,  the 
two  contracting  parties  solemnly 


tion  tend  a  la  subsistance  et  a 
1'avantage  commun  du  genre  hu- 
main,  auront  la  liberte  de  con- 
tinuer  leurs  professions  respec- 
tives,  et  ne  seront  point  molestes 
en  leurs  personnes,  ni  leurs  mai- 
sons,  ou  leurs  biens  incendies,  ou 
autrement  detruits,  ni  leurs  champs 
ravages  par  les  armees  de  1'ennemi 
au  pouvoir  duquel  ils  pourroient 
tomber  par  les  evenemens  de  la 
guerre ;  mais  si  1'on  se  trouve 
dans  la  necessite  de  prendre  quel- 
que  chose  de  leurs  proprietes  pour 
1'usage  de  1'armee  ennemie,  la 
valeur  en  sera  payee  a  un  prix 
raisonnable.  Tous  les  vaisseaux 
marchands  et  commergans,  em- 
ployes a  1'echange  des  productions 
de  differens  endroits,  et  par  con- 
sequent destines  a  faciliter  et  re- 
pandre  les  necessites,  les  commo- 
dites  et  les  douceurs  de  la  vie, 
passeront  librement  et  sans  etre 
molestes.  Et  les  deux  Puissances 
contractantes  s'engagent  a  n'ac- 
corder  aucune  commission  a  des 
vaisseaux  armes  en  course,  qui  les 
autorisat  a  prendre  ou  a  detruire 
ces  sortes  de  vaisseaux  mar- 
chands, ou  a  interrompre  le  com- 
merce. 

ARTICLE  24 

Afin  d'adoucir  le  sort  de  prison- 
niers  de  guerre,  et  ne  les  point 
exposer  a  etre  envoyes  dans  des 
climats  eloignes  et  rigoureux,  ou 
resserres  dans  des  habitations 
etroites  et  malsaines,  les  deux  Par- 


22    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


pledge  themselves  to  each  other 
and  to  the  world  that  they  will  not 
adopt  any  such  practice ;  that 
neither  will  send  the  prisoners 
whom  they  may  take  from  the 
other  into  the  East  Indies,  or  any 
other  parts  of  Asia  or  Africa,  but 
that  they  shall  be  placed  in  some 
part  of  their  dominions  in  Europe 
or  America,  in  wholesome  situa- 
tions ;  that  they  shall  not  be  con- 
fined in  dungeons,  prison-ships, 
nor  prisons,  nor  be  put  into  irons, 
nor  bound,  nor  otherwise  re- 
strained in  the  use  of  their  limbs ; 
that  the  officers  shall  be  enlarged 
on  their  paroles  within  convenient 
districts,  and  have  comfortable 
quarters,  and  the  common  men  be 
disposed  in  cantonments  open  and 
extensive  enough  for  air  and  exer- 
cise, and  lodged  in  barracks  as 
roomly  and  good  as  are  provided 
by  the  party  in  whose  power  they 
are  for  their  own  troops ;  that  the 
officers  shall  also  be  daily  fur- 
nished by  the  party  in  whose  power 
they  are  with  as  many  rations,  and 
of  the  same  articles  and  quality  as 
are  allowed  by  them,  either  in  kind 
or  by  commutation,  to  officers  of 
equal  rank  in  their  own  army ;  and 
all  others  shall  be  daily  furnished 
by  them  with  such  ration  as  they 
allow  to  a  common  soldier  in  their 
own  service;  the  value  whereof 
shall  be  paid  by  the  other  party  on 
a  mutual  adjustment  of  accounts 
for  the  subsistence  of  prisoners  at 


ties  contractantes  s'engagent  so- 
lemnellement  1'une  envers  1'autre, 
et  a  la  face  de  1'univers,  qu'elles 
n'adopteront  aucun  de  ces  usages ; 
que  les  prisonniers  qu'elles  pour- 
roient  faire  1'une  sur  1'autre  ne  se- 
ront  transported  ni  aux  Indes 
Orientales,  ni  dans  aucune  contree 
de  1'Asie  ou  de  1'Afrique,  mais 
qu'on  leur  assignera  en  Europe  ou 
en  Amerique,  dans  les  territoirs 
respectifs  des  Parties  contractan- 
tes, un  sejour  situe  dans  un  air 
sain;  qu'ils  ne  seront  point  confi- 
nes dans  des  cachots,  ni  dans  des 
prisons,  ni  dans  des  vaisseaux  de 
prison ;  qu'ils  ne  seront  pas  mis  au 
fers,  ni  garotes,  ni  autrement  pri- 
ves  de  1'usage  de  leurs  membres ; 
que  les  officiers  seront  relache- 
sur  leur  parole  d'honneur  dans 
1'enceinte  de  certains  districts  qui 
leur  seront  fixes,  et  qu'on  leur  ac- 
cordera  des  logemens  commodes; 
que  les  simples  soldats  seront  dis- 
tribues  dans  des  cantonnemens 
ouverts,  assez  vastes  pour  prendre 
Tair  et  1'exercice,  et  qu'ils  seront 
loges  dans  des  barraques  aussi  spa- 
cieuses  et  aussi  commodes  que  le 
sont  celles  des  troupes  de  la  Puis- 
sance au  pouvoir  de  laquelle  se 
trouvent  les  Prisonniers.  Que  cette 
Puissance  fera  pourvoir  journelle- 
ment  les  officiers  d'autant  de  ra- 
tions, composees  des  memes  arti- 
cles et  de  la  meme  qualite,  dont 
jouissent  en  nature  ou  en  equiva- 
lent, les  officiers  du  meme  rang 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


23 


the  close  of  the  war ;  and  the  said 
accounts  shall  not  be  mingled  with 
or  set  off  against  any  others,  nor 
the  bal/ances  due  on  them  be  with- 
held as  a  satisfaction  or  reprisal 
for  any  other  article  or  for  any 
other  cause,  real  or  pretended, 
whatever ;  that  each  party  shall  be 
allowed  to  keep  a  commissary  of 
prisoners  of  their  own  appoint- 
ment, with  every  separate  canton- 
ment of  prisoners  in  possession  of 
the  other,  which  commissary  shall 
see  the  prisoners  as  often  as  he 
pleases,  shall  be  allowed  to  receive 
and  distribute  whatever  comforts 
may  be  sent  to  them  by  their 
friends,  and  shall  be  free  to  make 
his  reports  in  open  letters  to  those 
who  employ  him;  but  if  any  offi- 
cer shall  breack  his  parole,  or  any 
other  prisoner  shall  escape  from 
the  limits  of  his  cantonment,  after 
they  shall  have  been  designated  to 
him,  such  individual  officer  or 
other  prisoner  shall  forfeit  so 
much  of  the  benefit  of  this  article 
as  provides  for  his  enlargement  on 
parole  or  cantonment.  And  it  is 
declared,  that  neither  the  pretence 
that  war  dissolves  all  treaties,  nor 
any  other  whatever,  shall  be  con- 
sidered as  annulling  or  suspend- 
ing this  and  the  next  preceding 
article;  but,  on  the  contrary,  that 
the  state  of  war  is  precisely  that 
for  which  they  are  provided,  and 
during  which  they  are  to  be  as 
sacredly  observed  as  the  most  ac- 


qui  sont  a  son  propre  service; 
qu'elle  fournira  egalement  a  tous 
les  autres  prisonniers  une  ration 
pareille  a  celle  qui  est  accordee 
au  soldat  de  sa  propre  armee.  Le 
montant  de  ces  depenses  sera  paye 
par  1'autre  Puissance,  d'apres  une 
liquidation  de  compte  a  arreter  re- 
ciproquement  pour  1'entretien  des 
prisonniers  a  la  fin  de  la  guerre; 
et  ces  comptes  ne  seront  point  con- 
fondus  ou  balances  avec  d'autres 
comptes,  ni  la  solde  qui  en  est  due, 
retenue  comme  compensation  ou 
represailles,  pour  tel  autre  article 
ou  telle  autre  prevention  reelle  ou 
supposee.  II  sera  permis  a  cha- 
cune  des  deux  Puissances  d'entre- 
tenir  un  Commissaire  de  leur 
choix,  dans  chaque  cantonnement 
des  prisonniers  qui  sont  au  pou- 
voir  de  1'autre;  ces  commissaires 
auront  la  liberte  de  visiter  les 
prisonniers,  aussi  souvent  qu'ils  le 
desireront ;  ils  pourront  egalement 
recevoir  et  distribuer  les  douceurs 
que  les  parens  ou  amis  des  prison- 
niers leur  feront  parvenir;  enfin 
il  leur  sera  libre  encore  de  faire 
leurs  rapports  par  lettres  ouver- 
tes,  a  ceux  qui  les  employent; 
mais  si  un  officier  manquoit  a  sa 
parole  d'honneur,  ou  qu'un  autre 
prisonnier  sortit  des  limites  qui 
auront  etc  fixees  a  son  cantonne- 
ment, un  tel  officier  ou  un  autre 
prisonnier  sera  frustre  individu- 
ellement  des  avantages  stipules 
dans  cet  article,  pour  sa  relaxation 


24    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


knowledged  articles  in  the  law  of 
nature  or  nations. 


ARTICLE  25 

The  two  contracting  parties 
grant  to  each  other  the  liberty  of 
having,  each  in  the  ports  of  the 
other,  Consuls,  Vice-Consuls, 
Agents,  and  Commissaries  of  their 
own  appointment,  whose  functions 
shall  be  regulated  by  particular 
agreement  whenever  either  party 
shall  chuse  to  make  such  appoint- 
ment; but  if  any  such  Consuls 
shall  exercise  commerce,  they  shall 
be  submitted  to  the  same  laws  and 
usages  to  which  the  private  indi- 
viduals of  their  nation  are  sub- 
mitted in  the  same  place. 

ARTICLE  26 

If  either  party  shall  hereafter 
grant  to  any  other  nation,  any  par- 
ticular favour  in  navigation  or 
commerce,  it  shall  immediately  be- 
come common  to  the  other  party, 
freely,  where  it  is  freely  granted 


sur  parole  d'honneur  ou  pour  son 
cantonnement.  Les  deux  Puis- 
sances contractantes  ont  declare 
en  outre,  que,  ni  le  pretexte  que  la 
guerre  rompt  les  traites,  ni  tel 
autre  motif  quelconque,  ne  seront 
cences  annuller  ou  suspendre  cet 
article  et  le  precedent ;  mais  qu'au 
contraire  le  temps  de  la  guerre  est 
precisement  celui  pour  lequel  ils 
ont  etc  stipules,  et  durant  lequel 
ils  seront  observes  aussi  sainte- 
ment  que  les  articles  les  plus  uni- 
versellement  reconnus  par  le  droit 
de  la  nature  et  des  gens. 

ARTICLE  25 

Les  deux  Parties  contractantes 
se  sont  accorde  mutuellement  la 
faculte  de  tenir  dans  leurs  ports 
respectifs,  des  consuls,  vice-con- 
suls, agens  et  commissaires  de  leur 
choix  et  dont  les  fonctions  seront 
determinees  par  un  arrangement 
particulier,  lorsque  1'une  des  deux 
Puissances  aura  nomme  a  ces  pos- 
tes.  Mais  dans  le  cas  que  tel,  ou 
autre  de  ces  consuls  veuille  faire 
le  commerce,  il  sera  soumis  aux 
memes  loix  et  usages,  auxquels 
sont  soumis  les  particuliers  de  sa 
nation  a  1'endroit  ou  il  reside. 

ARTICLE  26 

Lorsque  Tune  des  deux  parties 
contractantes  accordera  dans  la 
suite  quelque  faveur  particuliere 
en  fait  de  navigation  ou  de  com- 
merce a  d'autres  nations,  elle  de- 
viendra  aussitot  commune  a  Tau- 


TREATY  OF  AMITY  AND  COMMERCE,  1785 


25 


to  such  other  nation,  or  on  yield- 
ing the  compensation,  where  such 
nation  does  the  same. 


ARTICLE  27 

His  Majesty  the  King  of  Prus- 
sia and  the  United  States  of 
America  agree  that  this  treaty 
shall  be  in  force  during  the  term 
of  ten  years  from  the  exchange 
of  ratifications ;  and  if  the  expira- 
tion of  that  term  should  happen 
during  the  course  of  a  war  be- 
tween them,  then  the  articles 
before  provided  for  the  regula- 
tion of  their  conduct  during  such 
a  war,  shall  continue  in  force  un- 
til the  conclusion  of  the  treaty 
which  shall  reestablish  peace  ;  and 
that  this  treaty  shall  be  ratified  on 
both  sides,  and  the  ratifications 
exchanged  within  one  year  from 
the  day  of  its  signature. 

In  testimony  whereof  the  Pleni- 
potentiaries before  mentioned, 
have  hereto  subscribed  their  names 
and  affixed  their  seals,  at  the 
places  of  their  respective  resi- 
dence, and  at  the  dates  expressed 
under  their  several  signatures. 

B.  FRANKLIN. 


tre  partie  contractante,  et  celle-ci 
jouira  de  cette  faveur,  gratuite- 
ment,  si  la  concession  est  gratuite, 
ou  en  accordant  la  meme  compen- 
sation si  la  concession  est  condi- 
tionelle. 

ARTICLE  27 

Sa  Majeste  le  Roi  de  Prusse 
et  les  Etats-Unis  de  TAmerique 
sont  convenus  que  le  present  traite 
aura  son  plein  effet  pendant  Pes- 
pace  de  dix  ans,  a  compter  de  jour 
de  1'echange  des  Ratifications,  et 
que  si  1'expiration  de  ce  terme  ar- 
rivoit  dans  le  cours  d'une  guerre 
entre  eux,  les  articles  ci-dessus 
stipules  pour  regler  leur  conduite 
en  temps  de  guerre,  conserveront 
toute  leur  force,  jusqu'a  la  conclu- 
sion du  traite  qui  retablira  la  paix. 

Le  present  traite  sera  ratifie  de 
part  et  d'autre,  et  les  ratifications 
seront  echangees  dans  1'espace 
d'une  annee,  a  compter  du  jour  de 
la  signature. 

En  foi  de  quoi  les  Plenipoten- 
tiaires  sus  nommes  ont  signe  le 
present  Traite  et  y  ont  appose  le 
Cachet  de  leurs  armes,  aux  lieux 
de  leur  domicile  respectif,  ainsi 
qu'il  sera  exprime  ci-dessous. 


[L.  S.] 

Passy,  July  9,  1785. 

TH.  JEFFERSON.  [L.  s.] 

Paris,  July  28,  1785. 

JOHN  ADAMS.  [L.  s.] 

London,  August  5,  7/5*5. 

F.  G.  DE  THULEMEIER.      [L.  s.] 

A  la  Have  le  10  Septembre,  1785. 


Text  of  the  Treaty  of  17991 


TREATY    OF    AMITY    AND    COM-     TRAITE    D'AMITIE    ET    DE    COM- 
MERCE 

Entre  sa  Majeste  le  Roi  de  Prusse, 
et  les  Etats-Unis  de  I'Amerique. 


MERGE 

Between  his  Majesty  the  King  of 
Prussia  and  the  United  States 
of  America. 

His  Majesty  the  King  of  Prus- 
sia and  the  United  States  of  Amer- 
ica, desiring  to  maintain  upon  a 
stable  and  permanent  footing  the 
connections  of  good  understand- 
ing which  have  hitherto  so  hap- 
pily subsisted  between  their  re- 
spective States,  and  for  this  pur- 
pose to  renew  the  treaty  of  amity 
and  commerce  concluded  between 
the  two  Powers  at  the  Hague  the 
10th  of  September,  1785,  for  the 
term  of  ten  years,  His  Prussian 
Majesty  has  nominated  and  con- 
stituted as  his  Plenipotetiaries 
the  Count  Charles  William  de 
Finkenstein,  his  Minister  of  State, 
of  War,  and  of  the  Cabinet, 
Knight  of  the  Orders  of  the  Black 
Eagle  and  of  the  Red  Eagle,  and 
Commander  of  that  of  St.  John  of 


Sa  Majeste  le  Roi  de  Prusse  et 
les  Etats-Unis  de  1'Amerique,  de- 
sirant  d'entretenir  sur  un  pied 
stable  et  permanent  les  liaisons 
de  bonne  intelligence,  qui  ont  si 
heureusement  subsiste  jusqu'ici 
entre  Leurs  Etats  respectifs,  et  de 
renouveller  pour  cet  effet  le  Traite 
d'Amitie  et  de  Commerce,  qui  a 
etc  conclu  entre  les  deux  Puis- 
sances a  la  Have  le  10rae.  Septem- 
bre  1785,  pour  le  terme  de  dix  an- 
nees,  Sa  Majeste  Prussienne  a 
nomme  et  constitue  Ses  Plenipo- 
tentiaires,  le  Sieur  Charles  Guil- 
laume  Comte  de  Finkenstein,  Son 
Ministre  d'Etat,  de  guerre  et  de 
cabinet,  Chevalier  des  Ordres  de 
1'Aigle-noir,  et  de  1'Aigle-rouge,  et 
Commandeur  de  celui  de  St.  Jean 
de  Jerusalem ;  le  Sieur  Philippe- 


1  Concluded  July  11,  1799;  ratification  advised  by  the  Senate  February  18, 
1800;  ratified  by  the  President  February  19,  1800;  ratifications  exchanged  June 
22,  1800;  proclaimed  by  the  President  November  4,  1800.  This  treaty  expired 
by  its  own  limitations  June  22,  1810,  but  the  provisions  of  Articles  13  to  24 
inclusive  were  revived  by  Article  12  of  the  treaty  of  May  1,  1828  (post,  p.  59), 
with  the  exception  of  the  last  paragraph  of  the  19th  article  relating  to  treaties 
with  Great  Britain.  U.  S.  Statutes  at  Large,  vol.  8,  p.  162,  and  vol.  18,  pt.  2, 
p.  648;  Malloy,  Treaties,  Conventions,  International  Acts,  Protocols  and  Agree- 
ments between  the  United  States  and  Other  Powers,  7776-7909,  p.  1486. 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


27 


Jerusalem;  the  Baron  Philip 
Charles  d'Alvensleben,  his  Min- 
ister of  State,  of  War,  and  of  the 
Cabinet,  Knight  of  the  Orders  of 
the  Black  Eagle  and  of  the  Red 
Eagle,  and  of  that  of  St.  John  of 
Jerusalem ;  and  the  Count  Chris- 
tian Henry  Curt  de  Haugwitz, 
his  Minister  of  State,  of  War, 
and  of  the  Cabinet,  Knight  of 
the  Orders  of  the  Black  Eagle 
and  of  the  Red  Eagle ;  and  the 
President  of  the  United  States 
has  furnished  with  their  full  pow- 
ers John  Quincy  Adams,  a  citi- 
zen of  the  United  States,  and  their 
Minister  Plenipotentiary  at  the 
'Court  of  His  Prussian  Majesty ; 
which  Plenipotentiaries,  after  hav- 
ing exchanged  their  full  powers, 
found  in  good  and  due  form,  have 
concluded,  settled,  and  signed  the 
following  articles : 

ARTICLE  I 

There  shall  be  in  future,  as 
there  has  been  hitherto,  a  firm,  in- 
violable, and  universal  peace  and  a 
sincere  friendship  between  His 
Majesty  the  King  of  Prussia,  his 
heirs,  successors,  and  subjects,  on 
the  one  part,  and  the  United  States 
of  America  and  their  citizens  on 
the  other,  without  exception  of 
persons  or  places. 

ARTICLE  II 

The  subjects  of  His  Majesty 
the  King  of  Prussia  may  frequent 


Charles  Baron  d'Alvensleben,  Son 
Ministre  d'Etat,  de  guerre  et  de 
cabinet,  Chevalier  des  Ordres  de 
1'Aigle-noir,  et  de  1'Aigle-rouge, 
et  de  celui  de  St.  Jean  de  Jeru- 
salem, et  le  Sieur  Chretien- 
Henri-Curce-Comte  de  Haugwitz, 
Son  Ministre  d'Etat,  de  gueuc 
et  de  cabinet,  Chevalier  des  Or- 
dres de  1'Aigle-noir,  et  de  1'Aigle- 
rouge;  et  le  President  des  Etats- 
Unis  a  muni  de  Leur  pleinpouvoir 
Jean-Ouincy  Adams  Citoyen  des 
Etats-Unis,  et  Leur  ministre  Ple- 
nipotentiaire  a  la  Cour  de  Sa  Ma- 
jeste Prussienne;  Lesquels  Pleni- 
potentiaires,  apres  avoir  echanges 
leurs  pleinpouvoirs,  trouves  en 
bonne  et  due  forme,  ont  conclu, 
arrete  et  signe  les  Articles  sui- 
vans: 


ARTICLE  I 

II  y  aura  dans  la  suite,  comme 
par  le  passe,  une  paix  ferme,  in- 
violable et  universelle  et  une 
amitie  sincere  entre  Sa  Majeste  le 
Roi  de  Prusse,  Ses  heritiers,  suc- 
cesseurs  et  sujets  d'une  part,  et 
les  Etats-Unis  de  I'Amerique,  et 
Leurs  Citoyens  d'autre  part,  sans 
exception  de  personnes  ou  de 
lieux. 

ARTICLE  II 

Les  sujets  de  Sa  Majeste  le  Roi 
de  Prusse  pourront  frequenter 


28    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


all  the  coasts  and  countries  of  the 
United  States  of  America,  and  re- 
side and  trade  there  in  all  sorts 
of  produce,  manufactures,  and 
merchandize,  and  shall  pay  there 
no  other  or  greater  duties,  charges, 
or  fees  whatsoever  than  the  most 
favoured  nations  are  or  shall  be 
obliged  to  pay.  They  shall  also 
enjoy  in  navigation  and  commerce 
all  the  rights,  privileges,  and  ex- 
emptions which  the  most  favoured 
nation  does  or  shall  enjoy,  sub- 
mitting themselves,  nevertheless, 
to  the  established  laws  and  usages 
to  which  are  submitted  the  citi- 
zens of  the  United  States  and  the 
most  favoured  nations. 

ARTICLE  III 

In  like  manner,  the  citizens  of 
the  United  States  of  America  may 
frequent  all  the  coasts  and  coun- 
tries of  His  Majesty  the  King  of 
Prussia,  and  reside  and  trade  there 
in  all  sorts  of  produce,  manufac- 
tures, and  merchandize,  and  shall 
pay,  in  the  dominions  of  his  said 
Majesty,  no  other  or  greater  du- 
ties, charges,  or  fees  whatsoever 
than  the  most  favoured  nation  is 
or  shall  be  obliged  to  pay;  and 
they  shall  enjoy  all  the  rights, 
privileges,  and  exemptions  in  nav- 
igation and  commerce  which  the 
most  favoured  nation  does  or  shall 
enjoy,  submitting  themselves,  nev- 
ertheless, to  the  established  laws 
and  usages  to  which  are  submitted 


toutes  les  cotes  et  les  pays  des 
Etats-Unis  de  1'Amerique,  y  re- 
sider  et  trafiquer  en  toutes  sortes 
de  productions,  manufactures  et 
marchandises,  et  n'y  payeront 
d'autres  ni  de  plus  forts  impots, 
charges  ou  droits,  que  ceux  que 
les  nations  les  plus  favorisees  sont 
ou  seront  obligees  de  payer.  Us 
jouiront  aussi  dans  la  navigation 
et  le  commerce,  de  tous  les  droits, 
privileges  et  exemptions  dont 
jouit  ou  jouira  la  nation  la  plus 
favorisee  se  soumettant  nean- 
moins  aux  lois  et  usages  etablis, 
auxquels  sont  soumis  les  Citoyens 
des  Etats-Unis,  et  les  nations  les 
plus  favorisees. 

ARTICLE  III 

Pareillement  les  Citoyens  des 
Etats  Unis  de  1'Amerique  pour- 
ront  frequenter  toutes  les  cotes  et 
tous  les  pays  de  Sa  Majeste  le  Roi 
de  Prusse,  y  resider  et  trafiquer 
en  toutes  sortes  de  productions, 
manufactures  et  marchandises,  et 
ne  payeront  d'autres  ni  de  plus 
forts  impots,  charges  ou  droits, 
dans  les  domaines  de  Sa  dite  Ma- 
jeste, que  ceux  que  la  nation  la 
plus  favorisee  est  ou  sera  obligee 
de  payer ;  et  ils  jouiront  de  tous  les 
droits,  privileges  et  exemptions 
dans  la  navigation  et  le  commerce, 
dont  jouit  ou  jouira  la  nation  la 
plus  favorisee ;  se  soumettant 
neanmoins  aux  loix  et  usages  eta- 
blis, auxquels  sont  soumis  les  su- 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


29 


the  subjects  of  His  Majesty  the 
King  of  Prussia  and  the  subjects 
and  the  citizens  of  the  most  fa- 
voured nations. 

ARTICLE  IV 

More  especially,  each  party  shall 
have  a  right  to  carry  their  own 
produce,  manufactures,  and  mer- 
chandize, in  their  own  or  any 
other  vessels,  to  any  parts  of  the 
dominions  of  the  other,  where  it 
shall  be  lawful  for  all  the  sub- 
jects and  citizens  of  that  other 
freely  to  purchase  them,  and 
thence  to  take  the  produce,  manu- 
factures, and  merchandize  of  the 
other,  which  all  the  said  citizens 
or  subjects  shall  in  like  manner 
be  free  to  sell  to  them,  paying  in 
both  cases  such  duties,  charges, 
and  fees  only,  as  are  or  shall  be 
paid  by  the  most  favoured  nation. 
Nevertheless,  His  Majesty  the 
King  of  Prussia  and  the  United 
States  respectively  reserve  to 
themselves  the  right,  where  any 
nation  restrains  the  transportation 
of  merchandize  to  the  vessells  of 
the  country  of  which  it  is  the 
growth  or  manufacture,  to  estab- 
lish against  such  nation  retaliat- 
ing regulations ;  and  also  the  right 
to  prohibit  in  their  respective 
countries  the  importation  and  ex- 
portation of  all  merchandize 
whatsoever,  when  reasons  of  state 
shall  require  it.  In  this  case  the 
subjects  or  citizens  of  either  of  the 


jets  de  Sa  Majeste  le  Roi  de 
Prusse  et  les  sujets  et  citoyens  des 
nations  les  plus  favorisees. 


ARTICLE  IV 

En  particulier  chacune  des  deux 
nations  aura  le  droit  d'importer  ses 
propres  productions,  manufactu- 
res, et  marchandises,  a  bord  de  ses 
propres  batimens  ou  de  tel  autre, 
dans  toutes  les  parties  des  do- 
maines  de  1'autre,  ou  il  sera  per- 
mis  a  tous  les  sujets  et  citoyens 
de  1'autre  -nation  de  les  acheter 
librement  comme  aussi  d'y  char- 
ger les  productions,  manufactures 
et  marchandises  de  1'autre,  que 
tous  les  dits  sujets  ou  citoyens 
auront  la  liberte  de  leur  vendre, 
en  payant  dans  1'un  et  1'autre  cas 
tels  impots,  droits  et  charges 
seulement,  qui  sont  ou  seront 
payes  par  la  nation  la  plus  favo- 
risee.  Cependant  Sa  Majeste  le 
Roi  de  Prusse  et  les  Etats-Unis 
de  1'Amerique  se  reservent  le 
droit,  au  cas  que  quelque  nation 
restreigne  le  transport  des  mar- 
chandises aux  vaisseaux  des  pays 
dont  elles  sont  la  production  ou 
la  manufacture,  d'etablir  envers 
cette  nation  des  reglemens  recipro- 
ques ;  se  reservant  de  plus  le  droit 
de  prohiber  dans  Leurs  pays  res- 
pectifs,  1'importation  ou  1'expor- 
tation  de  toute  marchandise  quel- 
conque,  des  que  la  raison  d'etat 
1'exige.  En  ce  cas  les  sujets  ou 


TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


contracting  parties  shall  not  im- 
port or  export  the  merchandize 
prohibited  by  the  other.  But  if 
one  of  the  contracting  parties  per- 
mits any  other  nation  to  import 
or  export  the  same  merchandize, 
the  citizens  or  subjects  of  the 
other  shall  immediately  enjoy  the 
.same  liberty. 


ARTICLE  V 

The  merchants,  commanders  of 
vessels,  or  other  subjects  or  citi- 
zens of  either  party,  shall  not, 
within  the  ports  or  jurisdiction  of 
the  other,  be  forced  to  unload  any 
sort  of  merchandize  into  any  other 
vessels,  nor  to  receive  them  into 
their  own,  nor  to  wait  for  their 
being  loaded  longer  than  they 
please. 


ARTICLE  VI 

That  the  vessels  of  either  party, 
loading  within  the  ports  or  juris- 
diction of  the  other,  may  not  be 
uselessly  harassed,  or  detained,  it 
is  agreed,  that  all  examinations  of 
goods,  required  by  the  laws,  shall 
be  made  before  they  are  laden  on 
board  the  vessel,  and  that  there 
shall  be  no  examination  after ;  nor 
shall  the  vessel  be  searched  at  any 
time,  unless  articles  shall  have 
been  laden  therein  clandestinely 
and  illegally,  in  which  case  the  per- 


citoyens  d'une  des  Parties  Contrac- 
tantes,  ne  pourront  importer  ni  ex- 
porter les  marchandises  prohibees 
par  1'autre.  Mais  si  Tune  des  Par- 
ties Contractantes  permet  a  quel- 
que  autre  nation  d'importer  ou 
d'exporter  ces  memes  marchan- 
dises, les  citoyens  ou  sujets  de 
1'autre  Partie  Contractante  joui- 
ront  tout  aussitot  d'une  liberte 
pareille. 

ARTICLE  V 

Les  marchands,  commandans  de 
vaisseaux,  et  autres  sujets  ou  cito- 
yens de  chacune  des  deux  nations, 
ne  seront  pas  forces  dans  les  ports 
ou  dans  la  juridiction  de  1'autre, 
de  decharger  aucunes  sortes  de 
marchandises  dans  d'autres  vais- 
seaux, ni  de  les  recevoir  a  bord 
de  leurs  propres  navires,  ni  d'at- 
tendre  leur  chargement  plus  long- 
terns  qu'il  ne  leur  plaira. 

ARTICLE  VI 

Pour  eviter  que  les  vaisseaux  de 
1'une  des  deux  Parties  Contractan- 
tes ne  soyent  inutilement  molestes, 
ou  detenus  dans  les  ports,  ou  sous 
la  juridiction  de  1'autre,  il  a  ete 
convenu,  que  la  visite  des  mar- 
chandises, ordonnee  par  les  loix, 
se  fera  avant  qu'elles  ne  soyent 
chargees  sur  le  navire,  et  qu'en- 
suite  elles  ne  seront  plus  assujet- 
ties  a  aucune  visite.  Et  en  general 
il  ne  se  fera  point  de  recherche  a 
bord  du  vaisseau,  a  moins  qu'on 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


31 


son  by  whose  order  they  were  car- 
ried on  board,  or  who  carried  them 
without  order,  shall  be  liable  to 
the  laws  of  the  land  in  which  he 
is,  but  no  other  person  shall  be 
molested,  nor  shall  any  other 
goods,  nor  the  vessel,  be  seized  or 
detained  for  that  cause. 


ARTICLE  VII 

Each  party  shall  endeavour  by 
all  the  means  in  their  power  to 
protect  and  defend  all  vessels  and 
other  effects,  belonging  to  the  citi- 
zens or  subjects  of  the  other, 
which  shall  be  within  the  extent 
of  their  jurisdiction  by  sea  or  by 
land;  and  shall  use  all  their  ef- 
forts to  recover  and  cause  to  be 
restored  to  the  right  owners  their 
vessels  and  effects,  which  shall  be 
taken  from  them  within  the  ex- 
tent of  their  said  jurisdiction. 

ARTICLE  VIII 

The  vessels  of  the  subjects  or 
citizens  of  either  party,  coming  on 
any  coast  belonging  to  the  other, 
"but  not  willing  to  enter  into  port, 
or  who  entering  into  port  are  not 
willing  to  unload  their  cargoes 
or  break  bulk,  shall  have  liberty 
to  depart  and  to  pursue  their  voy- 
age without  molestation,  and  with- 
out being  obliged  to  render  ac- 


n'y  ait  charge  clandestinement  et 
illegalement  des  marchandises 
prohibees.  Dans  ce  cas,  celui  par 
1'ordre  duquel  elles  ont  etc  portees 
a  bord,  ou  celui  q\ii  les  y  a  portees 
sans  ordre,  sera  soumis  aux  lois 
du  pays  ou  il  se  trouve,  sans  que 
le  reste  de  1'equipage  soit  moleste, 
ni  les  autres  marchandises  ou  le 
vaisseau  saisis  ou  detenus  par 
cette  raison. 

ARTICLE  VII 

Chacune  des  deux  Parties  Con- 
tractantes  tachera  par  tous  les 
moyens  qui  seront  en  son  pouvoir, 
de  proteger  et  de  defendre  tous 
les  vaisseaux  et  autres  effets  ap- 
partenant  aux  citoyens  ou  sujets 
de  1'autre,  et  se  trouvant  dans 
1'etendue  de  sa  juridiction  par 
mer  ou  par  terre  et  elle  employera 
tous  ses  efforts  pour  recouvrer  et 
faire  restituer  aux  proprietaires 
legitimes,  les  vaisseaux  et  effets, 
qui  leur  auront  ete  enleves  dans 
1'etendue  de  sa  dite  juridiction. 

ARTICLE  VIII 

Les  vaisseaux  des  sujets  ou  ci- 
toyens d'une  des  deux  Parties  Con- 
tractantes,  arrivant  sur  une  cote 
appartenant  a  1'autre,  mais  n'ayant 
pas  dessein  d'entrer  au  port,  au 
qui,  en  y  entrant,  ne  voudroient 
pas  decharger  leurs  cargaisons,  ou 
rompre  leur  charge,  auron  la  li- 
berte  de  repartir,  et  de  pour- 
suivre  leur  route  sans  empeche- 


32    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


count  of  their  cargo,  or  to  pay 
any  duties,  charges,  or  fees  what- 
soever, except  those  established 
for  vessels  entered  into  port,  and 
appropriated  to  the  maintenance 
of  the  port  itself,  or  of  other  es- 
tablishments for  the  safety  and 
convenience  of  navigators,  which 
duties,  charges,  and  fees  shall  be 
the  same,  and  shall  be  paid  on  the 
same  footing,  as  in  the  case  of  sub- 
jects or  citizens  of  the  country 
where  they  are  established. 


ARTICLE  IX 

When  any  vessel  of  either  party 
shall  be  wrecked,  foundered,  or 
otherwise  damaged,  on  the  coasts 
or  within  the  dominions  of  the 
other,  their  respective  citizens  or 
subjects  shall  receive,  as  well  for 
themselves  as  for  their  vessels  and 
effects,  the  same  assistance  which 
would  be  due  to  the  inhabitants  of 
the  country  where  the  damage 
happens,  and  shall  pay  the  same 
charges  and  dues  only  as  the  said 
inhabitants  would  be  subject  to 
pay  in  a  like  case;  and  if  the  op- 
erations of  repair  shall  require 
that  the  whole  or  any  part  of  the 
cargo  be  unladed,  they  shall  pay 
no  duties,  charges,  or  fees  on  the 
part  which  they  shall  relade  and 
carry  away.  The  ancient  and  bar- 
barous right  to  wrecks  of  the  sea 
shall  be  entirely  abolished  with  re- 


ment,  et  sans  etre  obliges  de  ren- 
dre  compte  de  leur  cargaison,  ni 
de  payer  aucuns  impots,  charges 
ou  droits  quelconques,  excepte 
ceux  etablis  sur  les  vaisseaux  une 
f  ois  entres  dans  le  port,  et  destines 
a  1'entretien  du  port  meme,  ou 
a  d'autres  etablissemens,  qui  ont 
pour  but  la  surete  et  la  commodite 
des  navigateurs;  lesquels  droits, 
charges  et  impots  seront  les  me- 
mes,  et  se  payeront  sur  le  meme 
pied,  qu'ils  sont  acquites  par  les 
sujets  ou  citoyens  de  1'etat  ou  ils 
sont  etablis. 

ARTICLE  IX 

Au  cas  que  quelque  vaisseau  ap- 
partenant  a  1'une  des  deux  Par- 
ties Contractantes  auroit  fait  nau- 
frage,  echoue  ou  souffert  quelque 
autre  dommage,  sur  les  cotes  ou 
sous  la  domination  de  Tautre,  les 
sujets  ou  citoyens  respectifs,  rece- 
vront  tant  pour  eux,  que  pour 
leurs  vaisseaux  et  effets  la  meme 
assistance,  qui  auroit  ete  fournie 
aux  habitans  du  pays  ou  1'acci- 
dent  arrive,  et  ils  payeront  seule- 
ment  les  memes  charges  et  droits 
auxquels  les  dits  habitans  auroient 
ete  assujettis  en  cas  pareil.  Et  si 
la  reparation  du  vaisseau  exigeoit 
que  la  cargaison  fut  dechargee  en 
tout  ou  en  partie,  ils  ne  payeront 
aucun  impot,  charge  ou  droit,  de 
ce  qui  sera  rembarque  et  emporte. 
L'ancien  et  barbare  droit  de  nau- 
frage  sera  entierement  aboli  a 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


33 


spect  to  the  subjects  or  citizens  of 
the  two  contracting  parties. 

ARTICLE  X 

The  citizens  or  subjects  of  each 
party  shall  have  power  to  dispose 
of  their  personal  goods  within  the 
jurisdiction  of  the  other,  by  testa- 
ment, donation,  or  otherwise,  and 
their  representatives,  being  sub- 
jects or  citizens  of  the  other  party, 
shall  succeed  to  their  said  personal 
goods,  whether  by  testament  or  ab 
intestato,  and  may  take  possession 
thereof,  either  by  themselves  or  by 
others  acting  for  them,  and  dis- 
pose of  the  same  at  their  will, 
paying  such  dues  only  as  the  in- 
habitants of  the  country  wherein 
the  said  goods  are  shall  be  subject 
to  pay  in  like  cases.  And  in  case 
of  the  absence  of  the  representa- 
tive, such  care  shall  be  taken  of 
the  said  goods  as  would  be  taken 
of  the  goods  of  a  native  in  like 
case,  untill  the  lawful  owner  may 
take  measures  for  receiving  them. 
And  if  question  should  arise 
among  several  claimants  to  which 
of  them  the  said  goods  belong, 
the  same  shall  be  decided  finally 
by  the  laws  and  judges  of  the  land 
wherein  the  said  goods  are.  And 
where,  on  the  death  of  any  person, 
holding  real  estate,  within  the  ter- 
ritories of  the  one  party,  such  real 
estate  would,  by  the  laws  of  the 
land,  descend  on  a  citizen  or  sub- 
ject of  the  other,  were  he  not  dis- 


1'egard  des  sujets  ou  citoyens  des 
deux  Parties  Contractantes. 

ARTICLE  X 

Les  citoyens  ou  sujets  de  1'une 
des  Parties  Contractantes  auront 
dans  les  Etats  de  1'autre  la  liberte 
de  disposer  de  leurs  biens  person- 
nels, soit  par  testament,  donation 
ou  autrement,  et  leurs  heritiers, 
etant  sujets  ou  citoyens  de  1'autre 
Partie  Contractante,  succederont  a 
leurs  biens,  soit  en  vertu  d'un  tes- 
tament, ou  ab-intestat,  et  ils  pour- 
ront  en  prendre  possession,  soit 
en  personne,  soit  par  d'autres 
agissant  en  leur  place,  et  en  dis- 
poser a  leur  volonte,  en  ne  payant 
d'autres  droits,  que  ceux  auxquels 
les  habitans  du  pays,  ou  la  succes- 
sion est  devenu  vacante,  sont  as- 
sujettis  en  pareille  occurrence.  Et 
en  cas  d'absence  des  heritiers,  on 
prendra  provisoirement  des  biens 
qui  leur  sont  echus,  les  memes 
soins,  qu'on  auroit  pris  en  pareille 
occasion  des  biens  des  natifs  du 
pays,  jusqu'a  ce  que  le  proprie- 
taire  legitime  ait  agree  des  ar- 
rangemens  pour  recueillir  1'heri- 
tage.  S'il  s'eleve  des  contestations 
entre  differens  pretendans  ayant 
droit  a  la  succession,  elles  seront 
decidees  en  dernier  ressort  selon 
les  loix  et  par  les  juges  du  pays,  ou 
la  succession  est  vacante.  Et  si 
par  la  mort  de  quelque  personne 
possedant  des  biens-fonds  sur  le 
territoire  de  1'une  des  Parties  Con- 


34 


qualified  by  alienage,  such  subject 
shall  be  allowed  a  reasonable  time 
to  sell  the  same,  and  to  withdraw 
the  proceeds,  without  molestation, 
and  exempt  from  all  rights  of  de- 
traction on  the  part  of  the  Govern- 
ment of  the  respective  States.  But 
this  article  shall  not  derogate  in 
any  manner  from  the  force  of  the 
laws  already  published  or  here- 
after to  be  published  by  His 
Majesty  the  King  of  Prussia,  to 
prevent  the  emigration  of  his  sub- 
jects. 


ARTICLE  XI 

The  most  perfect  treedom  of 
conscience  and  of  worship  is 
granted  to  the  citizens  or  subjects 
of  either  party  within  the  juris- 
diction of  the  other,  and  no  per- 
son shall  be  molested  in  that  re- 
spect for  any  cause  other  than  an 
insult  on  the  religion  of  others. 
Moreover,  when  the  subjects  or 
citizens  of  the  one  party  shall  die 
within  the  jurisdiction  of  the 
other,  their  bodies  shall  be  buried 
in  the  usual  burying-grounds,  or 
other  decent  and  suitable  places, 
and  shall  be  protected  from  viola- 
tion or  disturbance. 


ARTICLE  XII 

Experience  having  proved,  that 
the  principle  adopted  in  the  twelfth 


tractantes,  ces  biens-fonds  ve- 
noient  a  passer,  selon  les  loix  du 
pays,  a  un  citoyen  ou  sujet  de 
1'autre  Partie;  celui-ci,  si,  par  sa 
qualite  d'Etranger,  il  est  inhabile 
de  les  posseder,  obtiendra  un  de- 
lai  convenable  pour  les  vendre,  et 
pour  en  retirer  le  provenu  sans 
obstacle  et  exempt  de  tout  droit 
de  retenue  de  la  part  du  Gouverne- 
ment  des  Etats  respectifs.  Mais 
cet  article  ne  derogera  en  aucune 
maniere  a  la  force  des  lois,  qui  ont 
deja  etc  publiees,  ou  qui  le  seront 
dans  la  suite  par  Sa  Majeste  le  Roi 
de  Prusse  pour  prevenir  1'emigra- 
tion  de  Ses  sujets. 

ARTICLE  XI 

II  sera  accorde  la  plus  parfaite 
liberte  de  conscience  et  de  culte 
aux  citoyens  et  sujets  de  chaque 
Partie  Contractante  dans  les  Etats 
de  1'autre ;  et  personne  ne  sera  mo- 
leste  a  cet  egard  pour  quelque 
cause  que  ce  soit,  si  ce  n'est  pour 
insulte  faite  a  la  religion  de  1'autre. 
De  plus  si  des  sujets  et  citoyens 
de  Tune  des  Parties  Contractantes 
venoient  a  mourir  dans  la  jurisdic- 
tion de  1'autre,  leurs  corps  seront 
enterres  dans  les  endroits,  ou  Ton 
a  la  coutume  de  faire  les  enterre- 
mens,  ou  dans  tel  autre  lieu  decent 
et  convenable,  et  ils  seront  prote- 
ges contre  toute  violence  et 
trouble. 

ARTICLE  XII 

L'experience  ayant  demontre 
que  le  principe  adopte  dans  1'arti- 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


35 


article  of  the  treaty  of  1785,  ac- 
cording to  which  free  ships  make 
free  goods,  has  not  been  suffi- 
ciently respected  during  the  two 
last  wars,  and  especially  in  that 
which  still  continues,  the  two  con- 
tracting parlies  propose,  after  the 
return  of  a  general  peace,  to  agree, 
either  separately  between  them- 
selves or  jointly  with  other  Pow- 
ers alike  interested,  to  concert 
with  the  great  maritime  Powers 
of  Europe  such  arrangements  and 
such  permanent  principles  as  may 
serve  to  consolidate  the  liberty  and 
the  safety  of  the  neutral  naviga- 
tion and  commerce  in  future  wars. 
And  if  in  the  interval  either  of 
the  contracting  parties  should  be 
engaged  in  a  war  to  which  the 
other  should  remain  neutral,  the 
ships  of  war  and  privateers  of  the 
belligerent  Power  shall  conduct 
themselves  towards  the  merchant 
vessels  of  the  neutral  Power  as 
favourably  as  the  course  of  the 
war  then  existing  may  permit,  ob- 
serving the  principles  and  rules  of 
the  law  of  nations  generally  ac- 
knowledged. 


ARTICLE  XIII 

And  in  the  same  case  of  one  of 
the  contracting  parties  being  en- 
gaged in  war  with  any  other 
Power,  to  prevent  all  the  difficul- 


cle  douze  du  Traite  de  17S5,  selon 
lequel:  les  vaisseaux  libres,  r en- 
dent  aussi  les  marchandises  libres, 
n'a  pas  ete  suffisamment  respecte 
dans  les  deux  dernieres  guerres,  et 
nommement  dans  celle  qui  dure 
encore,  les  deux  Parties  Contrac- 
tantes  se  reservent  de  s'entendre 
apres  le  retour  de  la  paix  generale, 
soit  separement  entr'Elles,  soit 
conjointement  avec  d'autres  Puis- 
sances co-interessees,  pour  concer- 
ter  avec  les  grandes  Puissances 
maritimes  de  1'Europe,  tels  ar- 
rangemens  et  tels  principes  per- 
manens,  qui  puissent  servir  a  con- 
solider  la  liberte  et  la  surete  de  la 
navigation  et  du  commerce  neu- 
tres  dans  les  guerres  futures. 

Et  si  pendant  cet  intervalle 
1'une  des  Parties  Contractantes  se 
trouve  engagee  dans  une  guerre  a 
laquelle  1'autre  reste  neutre,  les 
vaisseaux  de  guerre  et  les  arma- 
teurs  de  la  Puissance  belligerante, 
se  comporteront  a  1'egard  des 
batiments  marchands  de  la  Puis- 
sance neutre,  aussi  favorable- 
ment  que  la  raison  de  guerre  pour 
lors  existante,  pourra  le  permet- 
tre,  en  observant  les  principes  et 
les  regies  du  droit  des  gens  gene- 
ralement  reconnus. 

ARTICLE  XIII 

Dans  le  cas  ou  1'une  des  Parties 
Contractantes  se  trouveroit  en 
guerre  avec  une  autre  Puissance, 
il  a  ete  convenu  que  pour  prevenir 


36    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ties  and  misunderstandings  that 
usually  arise  respecting  merchan- 
dize of  contraband,  such  as  arms, 
ammunition,  and  military  stores  of 
every  kind,  no  such  articles  carried 
in  the  vessels,  or  by  the  subjects 
or  citizens  of  either  party,  to  the 
enemies  of  the  other,  shall  be 
deemed  contraband,  so  as  to  in- 
duce confiscation  or  condemnation 
and  a  loss  of  property  to  individ- 
uals. Nevertheless,  it  shall  be 
lawful  to  stop  such  vessels  and 
articles,  and  to  detain  them  for 
such  length  of  time  as  the  captors 
may  think  necessary  to  prevent 
the  inconvenience  or  damage  that 
might  ensue  from  their  proceed- 
ing, paying,  however,  a  reason- 
able compensation  for  the  loss 
such  arrest  shall  occasion  to  the 
proprietors;  and  it  shall  further 
be  allowed  to  use  in  the  service  of 
the  captors  the  whole  or  any  part 
of  the  military  stores  so  detained, 
paying  the  owners  the  full  value 
of  the  same,  to  be  ascertained  by 
the  current  price  at  the  place  of 
its  destination.  But  in  the  case 
supposed  of  a  vessel  stopped  for 
articles  of  contraband,  if  the  mas- 
ter of  the  vessel  stopped  will  de- 
liver out  the  goods  supposed  to 
be  of  contraband  nature,  he  shall 
be  admitted  to  do  it,  and  the  vessel 
shall  not  in  that  case  be  carried 
into  any  port,  nor  further  de- 
tained, but  shall  be  allowed  to  pro- 
ceed on  her  voyage. 


les  difficultes  et  les  discussions, 
qui  surviennent  ordinairement  par 
rapport  aux  marchandises  de  con- 
trebande,  telles  que  armes  et  mu- 
nitions de  toute  espece,  aucun  de 
ces  articles  charges  a  bord  des 
vaisseaux  des  sujets  ou  citoyens 
de  1'une  des  Parties,  et  destines 
pour  1'ennemi  de  1'autre  ne  sera 
cense  contrebande,  au  point  d'im- 
pliquer  confiscation  ou  condemna- 
tion, et  d'entrainer  la  perte  de  la 
propriete  des  individus.  Nean- 
moins  il  sera  permis  d'arreter  ces 
sortes  de  vaisseaux  et  effets  et  de 
les  retenir  pendant  tout  le  terns 
que  le  Preneur  croira  necessaire 
pour  prevenir  les  inconveniens  et 
les  dommages  qui  pourroient  en 
resulter  autrement,  mais  dans  ce 
cas  on  accordera  une  compensa- 
tion raisonnable  pour  les  pertes, 
qui  auront  ete  occasionnees  par  la 
saisie.  Et  il  sera  permis  en  outre 
aux  Preneurs  d'employer  a  leur 
service,  en  tout  ou  en  partie  les 
munitions  militaires  detenues,  en 
payant  aux  Proprietaires  la  pleine 
valeur,  a  determiner  sur  le  prix 
qui  aura  cours  a  1'endroit  de  leur 
destination ;  mais  si  dans  le  cas 
enonce  d'un  vaisseau  arrete  pour 
des  articles  de  contrebande,  le 
maitre  du  navire  consent  a  de- 
livrer  les  marchandises  suspectes, 
il  aura  la  liberte  de  le  faire,  et  le 
navire  ne  sera  plus  amene  dans  le 
port,  ni  detenu  plus  longtems,  mais 
aura  toute  liberte  de  poursuivre  sa 
route. 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


37 


All  cannons,  mortars,  fire-arms, 
pistols,  bombs,  grenades,  bullets, 
balls,  muskets,  flints,  matches, 
powder,  saltpeter,  sulphur,  cui- 
rasses, pikes,  swords,  belts,  car- 
touch  boxes,  saddles  and  bridles, 
beyond  the  quantity  necessary  for 
the  use  of  the  ship,  or  beyond  that 
which  every  man  serving  on  board 
the  vessel,  or  passenger,  ought  to 
have;  and  in  general  whatever  is 
comprized  under*  the  denomination 
of  arms  and  military  stores,  of 
what  description  soever,  shall  be 
deemed  objects  of  contraband. 


ARTICLE  XIV 

To  ensure  to  the  vessels  of  the 
two  contracting  parties  the  advan- 
tage of  being  readily  and  certainly 
known  in  time  of  war,  it  is  agreed 
that  they  shall  be  provided  with 
the  sea-letters  and  documents 
hereafter  specified: 

1.  A  passport,  expressing  the 
name,  the  property,  and  the 
burthen  of  the  vessel,  as  also  the 
name  and  dwelling  of  the  master, 
which  passport  shall  be  made  out 
in  good  and  due  form,  shall  be  re- 
newed as  often  as  the  vessel  shall 
return  into  port,  and  shall  be  ex- 
hibited whensoever  required,  as 
well  in  the  open  sea  as  in  port. 
But  if  the  vessel  be  under  convoy 
of  one  or  more  vessels  of  war,  be- 
longing to  the  neutral  party,  the 
simple  declaration  of  the  officer 


Seront  censes  objets  de  contre- 
bande,  les  canons,  mortiers,  armes 
a  feu,  pistolets,  bombes,  grenades, 
boulets,  bales,  fusils,  pierres  a  feu, 
meches,  poudre,  salpetre,  souflre, 
cuirasses,  piques,  epees,  ceintu- 
rons,  poches  a  cartouches,  selles 
et  brides,  au  dela  de  la  quantite 
necessaire  pour  1'usage  du  vais- 
seau,  et  au  dela  de  celle  que  doit 
avoir  chaque  homme  servant  sur 
le  vaisseau,  ou  passager  et  en  ge- 
neral tout  ce  qui  est  compris  sous 
la  denomination  d'armes  et  de 
munitions  de  guerre,  de  quelque 
espece  qu'elles  puissent  etre. 

ARTICLE  XIV 

Pour  assurer  aux  vaisseaux  des 
deux  Parties  Contractantes,l'a van- 
tage d'etre  promptement  et  sure- 
ment  reconnus  en  terns  de  guerre, 
on  est  convenu  qu'ils  devront  etre 
munis  des  lettres  de  mer  et  docu- 
mens  specifies  ci-apres : 

lmo.  D'un  Passeport,  exprimant 
le  nom,  le  proprietaire  et  le  port 
du  navire,  ainsi  que  le  nom  et  le 
domicile  du  maitre.  Ces  Passe- 
ports  qui  seront  expedies  en  bonne 
et  due  forme,  devront  etre  renou- 
velles  toutes  les  fois,  que  le  vais- 
seau retournera  dans  son  port,  et 
seront  exhibes  a  chaque  requisi- 
tion, tant  en  pleine  mer  que  dans 
le  port.  Mais  si  le  navire  se 
trouve  sous  le  convoy  d'un  ou  de 
plusieurs  vaisseaux  de  guerre,  ap- 
partenants  a  la  partie  neutre,  il 


38    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


commanding  the  convoy,  that  the 
said  vessel  belongs  to  the  party  of 
which  he  is,  shall  be  considered 
as  establishing  the  fact,  and  shall 
relieve  both  parties  from  the  trou- 
ble of  further  examination. 

2.  A   charter-party,   that   is   to 
say,  the  contract  passed  for  the 
freight  of  the  whole  vessel,  or  the 
bills  of  lading  given  for  the  cargo 
in  detail. 

3.  The  list  of  the  ship's  com- 
pany, containing  an  indication  by 
name  and  in  detail  of  the  persons 
composing  the  crew  of  the  vessel. 
These  documents  shall  always  be 
authenticated    according    to    the 
forms    established    at    the    place 
from  which  the  vessel  shall  have 
sailed. 

As  their  production  ought  to  be 
exacted  only  when  one  of  the  con- 
tracting parties  shall  be  at  war, 
and  as  their  exhibition  ought  to 
have  no  other  object  than  to  prove 
the  neutrality  of  the  vessel,  its 
cargo,  and  company,  they  shall 
not  be  deemed  absolutely  neces- 
sary on  board  such  vessels  belong- 
ing to  the  neutral  party  as  shall 
have  sailed  from  its  ports  before 
or  within  three  months  after  the 
Government  shall  have  been  in- 
formed of  the  state  of  war  in 
which  the  belligerent  party  shall  be 
engaged.  In  the  interval,  in  de- 
fault of  these  specific  documents, 
the  neutrality  of  the  vessel  may  be 


suffira  que  1'officier  commandant 
le  convoy,  declare  que  le  navire  est 
de  son  parti ;  moyennant  quoi  cette 
simple  declaration  sera  censee 
etablir  le  fait  et  dispensera  les 
deux  Parties  de  toute  visite  ulte- 
rieure. 

2do.,  De  la  Certe-partie ;  c'est  a 
dire,  ou  contrad  passe  pour  le  fret 
de  tout  le  navire,  ou  des  connois- 
sements  donnes  pour  la  cargaison 
en  general;  et  3tio,  du  role  d'equi- 
page  contenant  1'indication  nomi- 
nale  et  detaillee  des  personnes,  qui 
composent  1'equipage  du  navire. 

Ces  documents  seront  tou jours 
expedies  dans  la  forme  etablie  a 
1'endroit,  d'ou  le  navire  aura  mis 
a  la  voile. 


Comme  leur  production  ne  doit 
etre  exigee,  que  dans  le  cas  ou 
Tune  des  Parties  Contractantes  se- 
roit  en  guerre,  et  que  leur  exhibi- 
tion ne  doit  avoir  d'autre  but,  que 
de  prouver  la  neutralite  des  vais- 
seaux,  de  leurs  equipages,  et  de 
leurs  cargaisons,  ils  ne  seront  pas 
censes  absolument  necessaires  a 
bord  des  navires  de  la  partie  neu- 
tre,  qui  seront  sortis  de  ses  ports, 
avant  ou  trois  mois  apres,  que  le 
Gouvernement  aura  eu  connais- 
sance  de  1'etat  de  guerre  ou  se 
trouve  la  partie  belligerante.  Pen- 
dant cet  intervalle,  le  navire 
pourra  au  defaut  des  documens 
ci-dessus  specifies,  prouver  sa 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


39 


established  by  such  other  evidence 
as  the  tribunals  authorised  to 
judge  of  the  case  may  deem  suffi- 
cient. 

ARTICLE  XV 

And  to  prevent  entirely  all  dis- 
order and  violence  in  such  cases,  it 
is  stipulated  that,  when  the  ves- 
sels of  the  neutral  party,  sailing 
without  convoy,  shall  be  met  by 
any  vessel  of  war,  public  or  pri- 
vate, of  the  other  party,  such  ves- 
sel of  war  shall  not  send  more 
than  two  or  three  men  in  their 
boat  on  board  the  said  neutral  ves- 
sel to  examine  her  passports  and 
documents.  And  all  persons  be- 
longing to  any  vessel  of  war,  pub- 
lic or  private,  who  shall  molest  or 
insult  in  any  manner  whatever, 
the  people,  vessels,  or  effects  of 
the  other  party,  shall  be  respon- 
sible in  their  persons  and  property 
for  damages  and  interest,  suffi- 
cient security  for  which  shall  be 
given  by  all  commanders  of  pri- 
vate armed  vessels  before  they  are 
commissioned. 


ARTICLE  XVI 

In  times  of  war,  or  in  cases  of 
urgent  necessity,  when  either  of 
the  contracting  parties  shall  be 
obliged  to  lay  a  general  embargo, 
either  in  all  its  ports,  or  in  certain 
particular  places,  the  vessels  of 


neutralite  par  tel  autre  temoignage, 
que  les  tribunaux,  appelles  a  juger 
du  cas,  trouveront  suffisans. 

ARTICLE  XV 

Pour  prevenir  entierement  tout 
desordre  et  toute  violence  en  pa- 
reil  cas,  il  a  ete  stipule,  que  lors- 
que  les  navires  de  la  Partie  neutre, 
navigeant  sans  convoi,  rencontre- 
ront  quelque  vaisseau  de  guerre 
public  ou  particulier  de  1'autre 
partie,  le  vaisseau  de  guerre  n'en- 
verra  pas  plus  de  deux  ou  trois 
hommes,  dans  sa  chaloupe  a  bord 
du  navire  neutre  pour  examiner 
les  passeports  et  documents.  Et 
toutes  les  personnes  appartenantes 
a  quelque  vaisseau  de  guerre  pu- 
blic ou  particulier,  qui  molesteront 
ou  insulteront  en  quelque  maniere 
que  ce  soit  1'equipage,  les  vais- 
seaux,  ou  effets  de  1'autre  partie, 
seront  responsables  en  leurs  per- 
sonnes, et  en  leurs  biens  de  tous 
dommages  et  interets,  pour  les- 
quels  il  sera  donne  caution  suffi- 
sante  par  tous  les  commandans  de 
vaisseaux  armes  en  course,  avant 
qu'ils  regoivent  leurs  commissions. 

ARTICLE  XVI 

Dans  les  terns  de  guerre  et  les 
cas  de  necessite  urgente,  ou  Tune 
des  Parties  Contractantes  se  ver- 
roit  obligee  d'etablir  un  embargo 
general,  soit  dans  tous  les  ports  de 
Sa  domination,  soit  dans  certains 


40    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


the  other  party  shall  be  subject  to 
this  measure,  upon  the  same  foot- 
ing as  those  of  the  most  favoured 
nations,  but  without  having  the 
right  to  claim  the  exemption  in 
their  favour  stipulated  in  the  six- 
teenth article  of  the  former  treaty 
of  1785.  But  on  the  other  hand, 
the  proprietors  of  the  vessels 
which  shall  have  been  detained, 
whether  for  some  military  expedi- 
tion, or  for  what  other  use  soever, 
shall  obtain  from  the  Government 
that  shall  have  employed  them  an 
equitable  indemnity,  as  well  for 
the  freight  as  for  the  loss  occa- 
sioned by  the  delay.  And  further- 
more, in  all  cases  of  seizure,  de- 
tention, or  arrest,  for  debts  con- 
tracted or  offences  committed  by 
any  citizen  or  subject  of  the  one 
party  within  the  jurisdiction  of 
the  other,  the  same  shall  be  made 
and  prosecuted  by  order  and  au- 
thority of  law  only,  and  according 
to  the  regular  course  of  proceed- 
ings usual  in  such  cases. 


ARTICLE  XVII 

If  any  vessel  or  effects  of  the 
neutral  Power  be  taken  by  an  en- 
emy of  the  other,  or  by  a  pirate, 
and  retaken  by  the  Power  at  war, 
they  shall  be  restored  to  the  first 
proprietor,  upon  the  conditions 
hereafter  stipulated  in  the  twenty- 
first  article  for  cases  of  recapture. 


ports  particuliers,  les  vaisseaux  de 
1'autre  Partie  resteront  assujettis  a 
cette  mesure,  sur  le  meme  pied, 
que  le  seront  les  navires  des  na- 
tions les  plus  avantagees,  sans 
pouvoir  reclamer  1'exemption,  qui 
avoit  ete  stipulee  en  leur  faveur 
dans  1'article  16  de  1'ancien  Traite 
de  1785.  Mais  d'un  autre  cote 
les  proprietaires  des  vaisseaux, 
qui  auront  ete  retenus,  soit  pour 
quelque  expedition  militaire,  soit 
pour  tel  autre  usage  que  ce  soit, 
obtiendront  du  Gouvernement  qui 
les  aura  employes  une  indemnite 
equitable,  tant  pour  le  fret  que 
pour  les  pertes  occasionnees  par 
le  retard. 

De  plus  et  dans  tous  les  cas  de 
saisie,  de  detention  ou  d'arret, 
soit  pour  dettes  contractees,  ou 
offenses  commises  par  quelque 
citoyen  ou  sujet  de  1'une  des  Par- 
ties Contractantes  dans  la  juris- 
diction de  Pautre,  on  procedera 
uniquement  par  ordre  et  par  au- 
torite  de  la  justice,  et  suivant  les 
voyes  ordinaires  en  pareil  cas 
usitees. 

ARTICLE  XVII 

S'il  arrivoit  que  les  batimens 
ou  effets  de  la  Puissance  neutre 
fussent  pris  par  1'ennemi  de  1'au- 
tre, ou  par  un  pirate,  et  ensuite 
repris  par  la  Puissance  en  guerre, 
ils  seront  restitues  au  premier 
proprietaire  aux  conditions  qui 
seront  stipulees  ci-apres  dans  1'ar- 
ticle 21  pour  les  cas  de  reprise. 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


41 


ARTICLE  XVIII 

If  the  citizens  or  subjects  of 
either  party,  in  danger  from  tem- 
pests, pirates,  enemies,  or  other 
accidents,  shall  take  refuge,  with 
their  vessels  or  effects,  within  the 
harbours  or  jurisdiction  of  the 
other,  they  shall  be  received,  pro- 
tected, and  treated  with  humanity 
and  kindness,  and  shall  be  per- 
mitted to  furnish  themselves,  at 
reasonable  prices,  with  all  refresh- 
ments, provisions,  and  other  things 
necessary  for  their  sustenance, 
health,  and  accom[m]odation,  and 
for  the  repair  of  their  vessels. 


ARTICLE  XIX 

The  vessels  of  war,  public  and 
private,  of  both  parties,  shall  carry 
freely,  wheresoever  they  please, 
the  vessels  and  effects  taken  from 
their  enemies,  without  being  ob- 
liged to  pay  any  duties,  charges, 
or  fees  to  officers  of  admiralty,  of 
the  customs,  or  any  others;  nor 
shall  such  prizes  be  arrested, 
searched,  or  put  under  legal  proc- 
ess, when  they  come  to  and  enter 
the  ports  of  the  other  party,  but 
may  freely  be  carried  out  again 
at  any  time  by  their  captors  to  the 
places  expressed  in  their  commis- 
sions, which  the  commanding  offi- 
cer of  such  vessel  shall  be  obliged 
to  shew.  But,  conformably  to  the 


ARTICLE  XVIII 

Lorsque  les  citoyens  ou  sujets 
de  Tune  des  deux  Parties  Contrac- 
tantes  seront  forces  par  des  tem- 
petes  ou  par  la  poursuite  des  cor- 
saires  ou  vaisseaux  ennemis  ou 
par  quelqu'autre  accident,  a  se 
refugier  avec  leurs  vaisseaux  ou 
effets  dans  les  havres,  ou  dans  la 
juridiction  de  1'autre,  ils  seront 
rec,us,  proteges  et  traites  avec  hu- 
manite  et  honnetete.  II  leur  sera 
permis  de  se  pourvoir  a  un  prix 
raisonnable  de  rafraichissements, 
de  provisions  et  de  toutes  choses 
necessaires,  pour  leur  subsistance, 
sante  et  commodite,  et  pour  la  re- 
paration de  leurs  vaisseaux. 

ARTICLE  XIX 

Les  vaisseaux  de  guerre  publics 
et  particuliers  des  deux  Parties 
Contractantes  pourront  conduire 
en  toute  liberte,  partout  oil  il  leur 
plaira,  les  vaisseaux  et  effets 
qu'ils  auront  pris  sur  leurs  enne- 
mis, sans  etre  obliges  de  payer 
aucuns  impots,  charges  ou  droits, 
aux  Officiers  de  1'Amiraute,  des 
Douanes  ou  autres.  Ces  prises  ne 
pourront  etre  non  plus  ni  arre- 
tees,  ni  visitees,  ni  soumises  a  des 
procedures  legales,  en  entrant 
dans  le  port  de  1'autre  partie,  mais 
elles  pourront  en  sortir  librement, 
et  etre  conduites  en  tout  temps 
par  le  vaisseau  preneur  aux  en- 
droits  portes  par  les  commissions, 


42    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


treaties  existing  between  the 
United  States  and  Great  Britain, 
no  vessel  that  shall  have  made  a 
prize  upon  British  subjects  shall 
have  a  right  to  shelter  in  the  ports 
of  the  United  States,  but  if  foiced 
therein  by  tempests,  or  any  other 
danger  or  accident  of  the  sea,  they 
shall  be  obliged  to  depart  as  soon 
as  possible. 


ARTICLE  XX 

No  citizen  or  subject  of  either 
of  the  contracting  parties  shall 
take  from  any  Power  with  which 
the  other  may  be  at  war  any  com- 
mission or  letter  of  marque,  for 
arming  any  vessel  to  act  as  a  pri- 
vateer against  the  other,  on  pain 
of  being  punished  as  a  pirate ;  nor 
shall  either  party  hire,  lend,  or 
give  any  part  of  its  naval  or  mili- 
tary force  to  the  enemy  of  the 
other,  to  aid  them  offensively  or 
defensively  against  the  other. 


ARTICLE  XXI 

If  the  two  contracting  parties 
should  be  engaged  in  a  war  against 
a  common  enemy,  the  following 
points  shall  be  observed  between 
them: 


dont  1'officier  commandant  le  dit 
vaisseau  s*a  oblige  de  faire  mon- 
tre. 

Mais,  conformement  aux  Trai- 
tes  subsistans  entre  les  Etats-Unis 
et  la  Grande  Bretagne,  tout  vais- 
seau qui  aura  fait  une  prise 
sur  des  sujets  de  cette  derniere 
Puissance  ne  sauroit  obtenir  un 
droit  d'asile  dans  les  ports  des 
Etats-Unis  et  s'il  est  force  d'y 
relacher  par  des  tempetes  ou  quel- 
que  autre  danger,  ou  accident  de 
mer,  il  sera  oblige  d'en  repartir  le 
plutot  possible. 

ARTICLE  XX 

Aucun  citoyen  ou  sujet  de  Tune 
des  deux  Parties  Contractantes, 
n'acceptera  d'une  Puissance,  avec 
laquelle  1'autre  pourroit  etre  en 
guerre,  ni  commission,  ni  lettre  de 
marque,  pour  armer  en  course 
centre  cette  derniere,  sous  peine 
d'etre  puni  comme  pirate.  Et  ni 
Tun  ni  1'autre  des  deux  Etats  ne 
louera,  pretera,  ou  donnera  une 
partie  de  ses  forces  navales  ou 
militaires  a  1'ennemi  de  1'autre, 
pour  l'*aider  a  agir  offensivement 
ou  defensivement  contre  1'Etat  qui 
est  en  guerre. 

ARTICLE  XXI 

S'il  arrivoit  que  les  deux  Par- 
ties Contractantes  fussent  en  me- 
mes  terns  en  guerra  contre  un  en- 
nemie  commun,  on  observera  dfr 
part  et  d'autre  les  points  suivans: 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


43 


1.  If  a  vessel  of  one  of  the  par- 
ties,  taken  by  the   enemy,   shall, 
before  being  carried  into  a  neutral 
or  enemy's  port,  be  retaken  by  a 
ship  of  war  or  privateer  of  the 
other,  it  shall,  with  the  cargo,  be 
restored  to  the  first  owners,  for  a 
compensation  of  one-eighth  part 
of  the  value  of  the  said  vessel  and 
cargo,  if  the  recapture  be  made  by 
a  public  ship  of   war,  and  one- 
sixth  part,  if  made  by  a  privateer. 

2.  The  restitution  in  such  cases 
shall  be  after  due  proof  of  prop- 
erty, and  surety  given  for  the  part 
to  which  the  recaptors  are  entitled. 


3.  The  vessels  of  war,  public 
and  private,  of  the  two  parties, 
shall  reciprocally  be  admitted  with 
their    prizes    into    the    respective 
ports  of  each,  but  the  said  prizes 
shall   not  be   discharged  or  sold 
there,    until    their    legality    shall 
have  been   decided  according  to 
the  laws  and  regulations  of  the 
State  to  which  the  captor  belongs, 
but  by  the  judicatories  of  the  place 
into  which  the   prize   shall  have 
been  conducted. 

4.  It  shall  be  free  to  each  party 
to  make  such  regulations  as  they 
shall  judge  necessary,  for  the  con- 
duct of  their  respective  vessels  of 
war,  public  and  private,  relative  to 
the  vessels,  which  they  shall  take, 


lrao.,  Lorsqu'un  navire  de  1'une 
des  deux  nations  sera  repris  par 
les  vaisseaux  de  guerre  ou  arma- 
teurs  de  1'autre,  avant  d'avoir  etc 
conduit  dans  un  port  ennemi  ou 
neutre,  il  sera  restitue  avec  sa 
cargaison  au  premier  proprie- 
taire,  moyennant  une  retribution 
d'un  huitieme  de  la  valeur  du 
navire  et  de  la  cargaison,  si  la  re- 
prise a  ete  faite  par  un  vaisseau 
de  guerre,  et  d'un  sixieme,  si  elle 
a  ete  faite  par  un  armateur. 

2do.,  Dans  ces  cas,  la  restitution 
n'aura  lieu  qu'apres  les  preuves 
faites  de  la  propriete,  sous  cau- 
tion de  la  quote-part,  qui  en  re- 
vient  a  ceux  qui  ont  repris  le 
navire. 

3tl0.,  Les  vaisseaux  de  guerre 
publics  et  particuliers  des  deux 
Parties  Contractantes  seront  admis 
reciproquement  avec  leurs  prises, 
dans  les  ports  respectifs  cepen- 
dant  ces  prises  ne  pourront  y  etre 
dechargees  ni  vendues,  qu'apres 
que  la  legitimite  de  la  prise  aura 
ete  decidee  suivant  les  lois  et  regle- 
mens  de  1'Etat  dont  le  preneur  est 
sujet,  mais  par  la  justice  du  lieu 
ou  la  prise  aura  ete  conduite. 

4to.,  II  sera  libre  a  chacune  des 
Parties  Contractantes  de  faire  tels 
reglemens,  qu'Elles  jugeront  ne- 
cessaires,  relativement  a  la  con- 
duite que  devront  tenir  respec- 
tivement  leurs  vaisseaux  de 


44    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


and  carry  into  the  ports  of  the  two 
parties. 


ARTICLE  XXII 

When  the  contracting  parties 
shall  have  a  common  enemy,  or 
shall  both  be  neutral,  the  vessels  of 
war  of  each  shall  upon  all  occa- 
sions take  under  their  protection 
the  vessels  of  the  other  going  the 
same  course,  and  shall  defend  such 
vessels  as  long  as  they  hold  the 
same  course,  against  all  force  and 
violence,  in  the  same  manner  as 
they  ought  to  protect  and  defend 
vessels  belonging  to  the  party  of 
which  they  are. 


ARTICLE  XXIII 

If  war  should  arise  between  the 
two  contracting  parties,  the  mer- 
chants of  either  country  then  re- 
siding in  the  other  shall  be  allowed 
to  remain  nine  months  to  collect 
their  debts  and  settle  their  affairs, 
and  may  depart  freely,  carrying 
off  all  their  effects  without  moles- 
tation or  hindrance ;  and  all 
women  and  children,  scholars  of 
every  faculty,  cultivators  of  the 
earth,  artisans,  manufacturers,  and 
fishermen,  unarmed  and  inhabit- 
ing unfortified  towns,  villages,  or 
places,  and  in  general  all  others 
whose  occupations  are  for  the 


guerre  publics  et  particuliers  a 
1'egard  des  batimens  qu'ils  au- 
ront  pris  et  amenes  dans  les  ports 
des  deux  Puissances. 

ARTICLE  XXII 

Lorsque  les  Parties  Contractan- 
tes  seront  engagees  en  guerre 
contre  un  ennemi  commun,  ou 
qu'Elles  seront  neutres  toutes 
deux,  les  vaisseaux  de  guerre  de 
1'une  prendront  en  toute  occasion, 
sous  leur  protection  les  navires 
de  1'autre,  qui  font  avec  eux  la 
meme  route,  et  ils  les  defendront 
aussi  longtems  qu'ils  feront  voile 
ensemble,  contre  toute  force  et 
violence,  et  de  la  meme  maniere 
qu'ils  protegeroient  et  defen- 
droient  les  navires  de  leur  propre 
nation. 

ARTICLE  XXIII 

S'il  survient  une  guerre  entre 
les  Parties  Contractantes,  les  mar- 
chands  de  1'un  des  deux  Etats,  qui 
resideront  dans  1'autre,  auront  la 
permission  d'y  rester  encore  neuf 
mois,  pour  recueillir  leurs  dettes 
actives  et  arranger  leurs  affaires 
apres  quoi  ils  pourront  partir  en 
toute  liberte,  et  emporter  tous 
leurs  biens,  sans  etre  molestes  ni 
empeches.  Les  femmes  et  les  en- 
fans,  les  gens  de  lettres  de  toutes 
les  facultes,  les  cultivateurs,  arti- 
sans, manufacturiers  et  pecheurs, 
qui  ne  sont  point  armes,  et  qui 
habitent  des  villes,  villages  ou 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


45 


common  subsistence  and  benefit  of 
mankind,  shall  be  allowed  to  con- 
tinue their  respective  employ- 
ments, and  shall  not  be  molested 
in  their  persons,  nor  shall  their 
houses  or  goods  be  burnt  or  other- 
wise destroyed,  nor  their  fields 
wasted  by  the  armed  force  of  the 
enemy,  into  whose  power  by  the 
events  of  war  they  may  happen  to 
fall;  but  if  anything  is  necessary 
to  be  taken  from  them  for  the  use 
of  such  armed  force,  the  same 
shall  be  paid  for  at  a  reasonable 
price. 


ARTICLE  XXIV 

And  to  prevent  the  destruction 
of  prisoners  of  war,  by  sending 
them  into  distant  and  inclement 
countries,  or  by  crowding  them 
into  close  and  noxious  places,  the 
two  contracting  parties  solemnly 
pledge  themselves  to  the  world  and 
to  each  other  that  they  will  not 
adopt  any  such  practice ;  that 
neither  will  send  the  -prisoners 
whom  they  may  take  from  the 
other  into  the  East  Indies  or  any 
other  parts  of  Asia  or  Africa,  but 
that  they  shall  be  placed  in  some 
parts  of  their  dominions  in  Eu- 
rope or  America,  in  wholesome 
situations ;  that  they  shall  not  be 
confined  in  dungeons,  prison-ships, 


places  non-fortifiees,  et  en  gene- 
ral tous  ceux  dont  la  vocation 
tend  a  la  subsistance  et  a  1'avan- 
tage  commun  du  genre  humain, 
auront  la  liberte  de  continuer 
leurs  professions  respectives,  et 
ne  seront  point  molestes  en  leurs 
personnes,  ni  leurs  maisons  ou 
leurs  bien  incendies  ou  autrement 
detruits,  ni  leurs  champs  ravages 
par  les  armees  de  1'ennemi,  au 
pouvoir  duquel  ils  pourroient 
tomber  par  les  evenemens  de  la 
guerre ;  mais  si  Ton  se  trouve  dans 
la  necessite  de  prendre  quelque 
chose  de  leurs  proprietes  pour 
1'usage  de  1'armee  ennemie,  la 
valeur  en  sera  payee  a  un  prix 
raisonnable. 

ARTICLE  XXIV 

Afin  d'adoucir  le  sort  des  pri- 
sonniers  de  guerre  et  de  ne  les 
point  exposer  a  etre  envoyes  dans 
des  climats  eloignes  et  rigoureux, 
ou  resserres  dans  des  habitations 
etroites  et  malsaines,  les  deux 
Parties  Contractantes  s'engagent 
solemnellement  1'une  envers  1'au- 
tre  et  a  la  face  de  1'Univers, 
qu'Elles  n'adopteront  aucun  de 
ces  usages ;  que  les  prisonniers 
qu'Elles  pourroient  faire  1'une  sur 
1'autre  ne  seront  transported  ni 
aux  Indes  Orientales,  ni  dans  au- 
cune  contree  de  1'Asie  ou  de 
1'Afrique,  mais  qu'on  leur  as- 
signera  en  Europe,  ou  en  Ame- 
rique,  dans  les  territoires  respec- 


46    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


nor  prisons,  nor  be  put  into  irons, 
nor  bound,  nor  otherwise  re- 
strained in  the  use  of  their  limbs ; 
that  the  officers  shall  be  enlarged 
on  their  paroles  within  convenient 
districts,  and  have  comfortable 
quarters,  and  the  common  men  be 
disposed  in  cantonments  open  and 
extensive  enough  for  air  and  ex- 
ercise, and  lodged  in  barracks  as 
roomly  and  good  as  are  provided 
by  the  party  in  whose  power  they 
are  for  their  own  troops ;  that  the 
officers  shall  also  be  daily  fur- 
nished by  the  party  in  whose 
power  they  are  with  as  many 
rations,  and  of  the  same  articles 
and  quality  as  are  allowed  by 
them,  either  in  kind  or  by  commu- 
tation, to  officers  of  equal  rank  in 
their  own  army;  and  all  others 
shall  be  daily  furnished  by  them 
with  such  ration  as  they  shall  allow 
to  a  common  soldier  in  their  own 
service;  the  value  whereof  shall 
be  paid  by  the  other  party  on  a 
mutual  adjustment  of  accounts  for 
the  subsistence  of  prisoners  at  the 
close  of  the  war ;  and  the  said  ac- 
counts shall  not  be  mingled  with 
or  set  off  against  any  others,  nor 
the  balances  due  on  them  be  with- 
held as  a  satisfaction  or  reprizal 
for  any  other  article  or  for  any 
other  cause,  real  or  pretended, 
whatever.  That  each  party  shall 
be  allowed  to  keep  a  commissary 
of  prisoners  of  their  own  appoint- 
ment, with  every  separate  canton- 


tifs  des  Parties  Contractantes  un 
sejour  situe  dans  un  air  sain; 
qu'ils  ne  seront  point  confines 
dans  des  cachots  ni  dans  des  pri- 
sons, ni  dans  des  vaisseaux  de  pri- 
son; qu'ils  ne  seront  pas  mis  aux 
fers,  ni  garotes,  ni  autrement  pri- 
ves  de  1'usage  de  leurs  membres; 
que  les  officiers  seront  relaches 
sur  leur  parole  d'honneur  dans 
1'enceinte  de  certains  districts,  qui 
leur  seront  fixes,  et  qu'on  leur  ac- 
cordera  des  logemens  commodes ; 
que  les  simples  soldats  seront  dis- 
tribues  dans  des  cantonnemens 
ouverts,  assez  vastes  pour  pren- 
dre  1'air  et  1'exercice,  et  qu'ils  se- 
ront loges  dans  des  barraques 
aussi  spatieuses  et  aussi  com- 
modes que  le  sont  celles  des  trou- 
pes de  la  Puissance  au  pouvoir  de 
laquelle  se  trouvent  les  prison- 
niers ;  que  cette  Puissance  f  era 
pourvoir  journellement  les  offi- 
ciers, d'autant  de  rations,  compo- 
ses des  memes  articles  et  de  la 
meme  qualite,  dont  jouissent  en 
nature  ou  en  equivalent,  les  offi- 
ciers du  meme  rang,  qui  sont  a 
son  propre  service ;  qu-Elle  f  our- 
nira  egalement  a  tous  les  autres 
prisonniers,  une  ration  pareille  a 
celle  qui  est  accordee  au  soldat 
de  sa  propre  armee.  Le  montant 
de  ces  depenses  sera  paye  par 
1'autre  Puissance,  d'apres  une  li- 
quidation de  compte,  a  arreter 
reciproquement  pour  1'entretien 
des  prisonniers,  a  la  fin  de  la 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


47 


ment  of  prisoners  in  possession  of 
the  other,  which  commissary  shall 
see  the  prisoners  as  often  as  he 
pleases,  shall  be  allowed  to  receive 
and  distribute  whatever  comforts 
may  be  sent  to  them  by  their 
friends,  and  shall  be  free  to  make 
his  reports  in  open  letters  to  those 
who  employ  him;  but  if  any  offi- 
cer shall  break  his  parole,  or  any 
other  prisoner  shall  escape  from 
the  limits  of  his  cantonment  after 
they  shall  have  been  designated  to 
him,  such  individual  officer  or 
other  prisoner  shall  forfeit  so 
much  of  the  benefit  of  this  article 
as  provides  for  his  enlargement  on 
parole  or  cantonment.  And  it  is 
declared,  that  neither  the  pretence 
that  war  dissolves  all  treaties,  nor 
any  other  whatever,  shall  be  con- 
sidered as  annulling  or  suspending 
this  and  the  next  preceding  article ; 
but,  on  the  contrary,  that  the  state 
of  war  is  precisely  that  for  which 
they  are  provided,  and  during 
which  they  are  to  be  as  sacredly 
observed  as  the  most  acknowl- 
edged articles  in  the  law  of  nature 
and  nations. 


guerre,  et  ces  comptes  ne  seiom 
point  confondus  ou  balances  avec 
d'autres  comptes,  ni  la  solde  qui 
en  est  due,  retenue  comme  com- 
pensation ou  represailles  pour 
tel  autre  article,  ou  telle  autre 
pretension  reelle  ou  supposee. 
II  sera  permis  a  chacune  des  deux 
Puissances  d'entretenir  un  com- 
missaire  de  leur  choix,  dans  cha- 
que  cantonnement  des  prison- 
niers,  qui  sont  au  pouvoir  de 
1'autre.  Ces  commissaires  auront 
la  liberte  de  visiter  les  prison- 
niers,  aussi  souvent  qu'ils  le  de- 
sireront  ils  pourront  egalement 
recevoir  et  distribuer  les  dou- 
ceurs, que  les  parents  ou  amis  des 
prisonniers  leur  feront  parvenir; 
enfin  il  leur  sera  libre  encore  de 
faire  leurs  rapports  par  lettres 
ouvertes,  a  ceux  qui  les  emplo- 
yent.  Mais  si  un  officier  man- 
quoit  a  sa  parole  d'honneur,  ou 
qu'un  autre  prisonnier  sortit  des 
limites  qui  auront  ete  fixees  a  son 
cantonnement,  un  tel  officier  ou 
autre  prisonnier  sera  frustre  in- 
dividuellement  des  avantages  sti- 
pules dans  cet  article,  pour  sa  re- 
laxation sur  parole  d'honneur,  ou 
pour  son  cantonnement.  Les 
deux  Puissances  Contractantes  ont 
declare  en  outre,  que  ni  le  pre- 
texte  que  la  guerre  rompt  les 
Traites,  ni  tel  autre  motif  quelcon- 
que  ne  sera  cense  annuller  ou 
suspendre  cet  article,  et  le  prece- 
dent mais  qu'au  contraire  le  terns 


48    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ARTICLE  XXV 

The  two  contracting  parties  have 
granted  to  each  other  the  liberty  of 
having  each  in  the  ports  of  the 
other  Consuls,  Vice-Consuls, 
Agents,  and  Commissaries  of  their 
own  appointment,  who  shall  enjoy 
the  same  privileges  and  powers  as 
those  of  the  most  favoured  na- 
tions; but  if  any  such  Consuls 
shall  exercise  commerce,  they  shall 
be  submitted  to  the  same  laws  and 
usages  to  which  the  private  indi- 
viduals of  their  nation  are  sub- 
mitted in  the  same  place. 

ARTICLE  XXVI 

If  either  party  shall  hereafter 
grant  to  any  other  nation  any  par- 
ticular favour  in  navigation  or 
commerce,  it  shall  immediately  be- 
come common  to  the  other  party, 
freely,  where  it  is  freely  granted 
to  such  other  nation,  or  on  yield- 
ing the  same  compensation,  when 
the  grant  is  conditional. 


de  la  guerre  est  precisement  celui 
pour  lequel  ils  ont  etc  stipules  et 
durant  lequel  ils  seront  observes 
aussi  saintement  que  les  articles 
les  plus  universellement  reconnus 
par  le  Droit  de  la  nature  et  des 
Gens. 

ARTICLE  XXV 

Les  deux  Parties  Contractantes 
se  sont  accorde  mutuellement  la 
faculte  de  tenir  dans  Leurs  ports 
respectifs  des  Consuls,  Vice-con- 
suls, Agens,  et  Commissaires  de 
Leurs  choix,  et  ils  y  jouiront  des 
memes  privileges  et  pouvoirs  dont 
jouissent  ceux  des  nations  les 
plus  favorisees.  Mais  dans  le  cas 
ou  tel  ou  autre  de  ses  Consuls 
veuille  faire  le  commerce,  il  sera 
soumis  aux  memes  lois  et  usages 
auxquels  sont  soumis  les  particu- 
liers  de  sa  nation  a  1'endroit  ou 
il  reside. 

ARTICLE  XXVI 

Lorsque  Tune  des  deux  Parties 
Contractantes  accordera  dans  la 
suite  quelque  faveur  particuliere 
en  fait  de  navigation  ou  de  com- 
merce a  d'autres  nations,  elle  de- 
viendra  aussitot  commune  a  1'au- 
tre  Partie  Contractante,  et  celle-ci- 
jou'ira  de  cette  faveur  gratuite- 
ment,  si  la  concession  est  gratuite, 
ou  en  accordant  la  meme  compen- 
sation si  la  concession  est  condi- 
tionelle. 


TREATY  OF  AMITY  AND  COMMERCE,  1799 


49 


ARTICLE  XXVII 

His  Majesty  the  King  of  Prus- 
sia and  the  United  States  of 
America  agree  that  this  treaty 
shall  be  in  force  during  the  term 
of  ten  years  from  the  exchange  of 
the  ratifications ;  and  if  the  expira- 
tion of  that  term  should  happen 
during  the  course  of  a  war  be- 
tween them,  then  the  articles  be- 
fore provided  for  the  regulation  of 
their  conduct  during  such  a  war 
shall  continue  in  force  until  the 
conclusion  of  the  treaty  which 
shall  restore  peace. 

This  treaty  shall  be  ratified  on 
both  sides,  and  the  ratifications  ex- 
changed within  one  year  from  the 
day  of  its  signature,  or  sooner  if 
possible. 


In  testimony  whereof,  the  Pleni- 
potentiaries before  mentioned  have 
hereto  subscribed  their  names  and 
affixed  their  seals.  Done  at  Ber- 
lin, the  eleventh  of  July,  in  the 
year  one  thousand  seven  hundred 
and  ninety-nine. 

JOHN  QUINCY  ADAMS. 

CHARLES  GUILLAUME  COMTE  DE  FINKENSTEIN. 

PHILIPPE  CHARLES  D'ALVENSLEBEN. 

CHRETIEN  HENRI  CURCE  COMTE  DE  HAUGWITZ. 


ARTICLE  XXVII 

Sa  Majeste  le  Roi  de  Prusse  et 
les  Etats-Unis  de  I'Amerique  sont 
convenus  que  le  present  Traite 
aura  son  plein  effet  pendant  1'es- 
pace  de  dix  annees,  a  compter  du 
jour  de  1'echange  des  Ratifications, 
et  que  si  1'expiration  de  ce  terme 
arrivoit  dans  le  cours  d'une 
guerre  entr'-Eux,  les  articles  ci- 
dessus  stipules  pour  regler  Leur 
conduite  en  temps  de  guerre,  con- 
serveront  toute  leur  force  jusqu'a 
la  conclusion  du  Traite,  qui  re- 
tablira  la  paix. 

Le  present  Traite  sera  ratifie  de 
part  et  d'autre,  et  les  ratifications 
seront  echangees  dans  1'espace 
d'une  annee,  a  compter  du  jour  de 
la  signature,  ou  plutot  si  faire  se 
peut. 

En  foi  de  quoi  les  Plenipoten- 
tiaires  susnommes  ont  signe  le 
present  Traite  et  y  ont  appose  le 
cachet  de  leurs  armes.  Fait  a 
Berlin  le  onze  Juillet,  1'an  mille 
sept  cents  quatre-vingt  dix-neuf. 


[L.S.] 
[L.S.] 
[L.S.] 
[L.S.] 


Text  of  the  Treaty  of  18281 


TREATY  OF  COMMERCE  AND 

NAVIGATION 

Between  the  United  States  of 
America,  and  His  Majesty  the 
King  of  Prussia. 

The  United  States  of  America 
and  His  Majesty  the  King  of 
Prussia,  equally  animated  with  the 
desire  of  maintaining  the  relations 
of  good  understanding  which  have 
hitherto  so  happily  subsisted  be- 
tween their  respective  States,  of 
extending,  also,  and  consolidating 
the  commercial  intei  course  be- 
tween them,  and  convinced  that 
this  object  cannot  better  be  accom- 
plished than  by  adopting  the  sys- 
tem of  an  entire  freedom  of  navi- 
gation, and  a  perfect  reciprocity, 
based  upon  principles  of  equity 
equally  beneficial  to  both  countries, 
and  applicable  in  time  of  peace  as 
well  as  in  time  of  war,  have,  in 
consequence,  agreed  to  enter  into 
negotiations  for  the  conclusion  of 
a  treaty  of  navigation  and  com- 
merce; for  which  purpose  the 
President  of  the  United  States  has 


TRAITE  DE  COMMERCE  ET  DE 

NAVIGATION 

Entre  Sa  Majeste  le  Roi  de 
Prusse,  et  les  Etats  Unis 
d'Amerique. 

Sa  Majeste  le  Roi  de  Prusse, 
et  les  Etats  Unis  d'Amerique, 
egalement  animes  du  desir  de 
maintenir  les  rapports  de  bonne 
intelligence  qui  ont  si  heureuse- 
ment  subsiste  jusqu'ici  entre  Leurs 
Etats  respectifs;  et  d'en  etendre 
et  consolider  les  relations  com- 
merciales ;  et  convaincus  que  cet 
objet  ne  sauroit  etre  mieux  rem- 
pli  qu'en  adoptant  le  systeme 
d'une  entiere  liberte  de  naviga- 
tion, et  d'une  parfaite  recipro- 
cite,  base  sur  des  principes 
d'equite  egalement  avantageux 
aux  deux  Pays,  et  applicables  en 
temps  de  paix  comme  en  temps  de 
guerre ;  sont,  en  consequence,  con- 
venus  d'entrer  en  negociation, 
pour  conclude  un  Traite  de  Com- 
merce et  de  Navigation.  A  cet 
effet,  Sa  Majeste  le  Roi  de  Prusse 
a  muni  de  Pleins  Pouvoirs  le  Sieur 


1  Concluded  May  1,  1828 ;  ratification  advised  by  the  Senate  May  4,  1828 ;  rati- 
fication again  advised  and  time  for  exchange  of  ratifications  extended  by  the 
Senate  March  9,  1829;  ratifications  exchanged  March  14,  1829;  proclaimed  by 
the  President  March  14,  1829.  U.  S.  Statutes  at  Large,  vol.  8,  p.  378,  and  vol. 
18,  pt.  2,  p.  656;  Malloy,  Treaties,  Conventions,  International  Acts,  Protocols  and 
Agreements  between  the  United  States  and  Other  Powers,  1776-1909,  p.  1496. 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


51 


conferred  full  powers  on  Henry 
Gay,  their  Secretary  of  State ;  and 
His  Majesty  the  King  of  Prussia 
has  conferred  like  powers  on  the 
Sieur  Ludwig  Niederstetter, 
Charge  d' Affaires  of  His  said  Maj- 
esty near  the  United  States;  and 
the  said  Plenipotentiaries,  having 
exchanged  their  said  full  powers, 
found  in  good  and  due  form,  have 
concluded  and  signed  the  follow- 
ing articles : 

ARTICLE  I 

There  shall  be  between  the  ter- 
ritories of  the  high  contracting 
parties  a  reciprocal  liberty  of  com- 
merce and  navigation.  The  inhab- 
itants of  their  respective  States 
shall  mutually  have  liberty  to  enter 
the  ports,  places,  and  rivers  of  the 
territories  of  each  party,  wherever 
foreign  commerce  is  permitted. 
They  shall  be  at  liberty,  to  sojourn 
and  reside  in  all  parts  whatsoever 
of  said  territories,  in  order  to  at- 
tend to  their  affairs  ;  and  they  shall 
enjoy,  to  that  effect,  the  same  se- 
curity and  protection  as  natives  of 
the  country  wherein  they  reside, 
on  condition  of  their  submitting  to 
the  laws  and  ordinances  there  pre- 
vailing. 

ARTICLE  II 

Prussian  vessels  arriving  either 
laden  or  in  ballast  in  the  ports  of 
the  United  States  of  America,  and, 
reciprocally,  vessels  of  the  United 


Ludwig  Niederstetter,  Charge 
d' Affaires  de  Sa  dite  Majeste 
pres  les  Etats  Unis  d'Amerique; 
et  le  President  des  Etats  Unis 
d'Amerique  a  muni  des  memes 
Pouvoirs  Henri  Clay,  Leur  Secre- 
taire d'Etat;  lesquels  Plenipoten- 
tiaires,  apres  avoir  echange  leurs 
dits  Pleins  Pouvoirs,  trouves  en 
bonne  et  due  forme,  ont  arrete  et 
signe  les  articles  suivans : 

ARTICLE  I 

II  y  aura,  entre  les  Territoires 
des  Hautes  Parties  Contractantes, 
liberte  et  reciprocite  de  commerce 
et  de  navigation.  Les  habitans  de 
Leurs  Etats  respectifs  pourront, 
reciproquement,  entrer  dans  les 
ports,  places  et  rivieres  des  terri- 
toires  de  chacune  d'Elles,  partout 
ou  le  commerce  etranger  est  per- 
mis.  Us  seront  libres  de  s'v  ar- 
reter,  et  resider  dans  quelque  par- 
tie  que  ce  soit  desdits  territoires, 
pour  y  vaquer  a  leurs  affaires ;  et 
ils  jouiront,  a  cet  effet,  de  la 
meme  securite  et  protection  que 
les  habitans  du  pays  dans  lequel 
ils  resideront,  a  charge  de  se  sou- 
mettre  aux  lois  et  ordonnances  y 
etablies. 

ARTICLE  II 

Les  batimens  Prussiens  arri- 
vant,  sur  lest  ou  charges  dans  les 
ports  des  Etats-Unis  d'Amerique; 
et,  reciproquement,  les  batimens 


52    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


States  arriving  either  laden  or  in 
ballast  in  the  ports  of  the  King- 
dom of  Prussia,  shall  be  treated 
on  their  entrance,  during  their 
stay,  and  at  their  departure,  upon 
the  same  footing  as  national  ves- 
sels coming  from  the  same  place, 
with  respect  to  the  duties  of  ton- 
nage, light-houses,  pilotage,  sal- 
vage, and  port  charges,  as  well  as 
to  the  fees  and  perquisites  of  pub- 
lic officers,  and  all  other  duties  and 
charges,  of  whatever  kind  or  de- 
nomination, levied  in  the  name  or 
to  the  profit  of  the  Government, 
the  local  authorities,  or  of  any 
private  establishment  whatsoever. 

ARTICLE  III 

All  kinds  of  merchandise  and 
articles  of  commerce  either  the 
produce  of  the  soil  or  the  industry 
of  the  United  States  of  America, 
or  of  any  other  country,  which 
may  be  lawfully  imported  into  the 
ports  of  the  Kingdom  of  Prussia, 
in  Prussian  vessels,  may  also  be 
so  imported  in  vessels  of  the 
United  States  of  America,  with- 
out paying  other  or  higher  duties 
or  charges,  of  whatever  kind  or 
denomination,  levied  in  the  name 
or  to  the  profit  of  the  Government, 
the  local  authorities,  or  of  any  pri- 
vate establishments  whatsoever, 
than  if  the  same  merchandise  or 
produce  had  been  imported  in 
Prussian  vessels.  And,  recipro- 


des  Etats  Unis,  arrivant,  sur  lest 
ou  charges,  dans  les  ports  du  Ro- 
yaume  de  Prusse,  seront  traites, 
a  leur  entree,  pendant  leur  sejour, 
et  a  leur  sortie,  sur  le  meme  pied 
que  les  batimens  nationaux  ve- 
nant  du  meme  lieu,  par  rapport 
aux  droits  de  tonnage,  de  fanaux, 
de  pilotage,  de  sauvetage  et  de 
port,  ainsi  qu'aux  vacations  des 
officiers  publics,  et  a  tout  autre 
droit  ou  charge,  de  quelque  espece 
ou  denomination  que  ce  soit,  per- 
gus  au  nom  ou  au  profit  du  Gou- 
vernement,  des  autorites  locales, 
ou  d'etablissemens  particuliers 
quelconques. 

ARTICLE  III 

Toute  espece  de  marchandises 
et  objets  de  commerce,  provenant 
du  sol  ou  de  1'industrie  des  Etats 
Unis  d'Amerique,  ou  de  tout  au- 
tre pays,  qui  pourront  legalement 
etre  importes  dans  les  ports  du 
Royaume  de  Prusse  sur  des  bati- 
mens Prussiens,  pourront  egale- 
ment  y  etre  importes  sur  des 
batimens  des  Etats  Unis  d'Ame- 
rique, sans  payer  d'autres,  ou  plus 
forts  droits  ou  charges,  de  quel- 
que espece  ou  denomination  que 
ce  soit,  pergus  au  nom  ou  au  pro- 
fit du  Gouvernement,  des  autori- 
tes locales,  ou  d'etablissemens 
particuliers  quelconques,  que  s'ils 
etoient  importes  sur  des  batimens 
Prussiens. 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


53 


cally,  all  kind  of  merchandise  and 
articles  of  commerce,  either  the 
produce  of  the  soil  or  of  the  in- 
dustry of  the  Kingdom  of  Prus- 
sia, or  of  any  other  country,  which 
may  be  lawfully  imported  into  the 
ports  of  the  United  States  in  ves- 
sels of  the  said  States,  may  also 
be  so  imported  in  Prussian  vessels, 
without  paying  other  or  higher 
duties  or  charges,  of  whatever 
kind  or  denomination,  levied  in 
the  name  or  to  the  profit  of  the 
Government,  the  local  authorities, 
or  of  any  private  establishments 
whatsoever,  than  if  the  same  mer- 
chandise or  produce  had  been  im- 
ported in  vessels  of  the  United 
States  of  America. 

ARTICLE  IV 

To  prevent  the  possibility  of  any 
misunderstanding,  it  is  hereby  de- 
clared that  the  stipulations  con- 
tained in  the  two  preceding  articles 
are  to  their  full  extent  applicable 
to  Prussian  vessels  and  their  car- 
goes arriving  in  the  ports  of  the 
United  States  of  America,  and, 
reciprocally,  to  vessels  of  the  said 
States  and  their  cargoes,  arriving 
in  the  ports  of  the  Kingdom  of 
Prussia,  whether  the  said  vessels 
clear  directly  from  the  ports  of 
the  country  to  which  they  respect- 
ively belong,  or  from  the  ports  of 
any  other  foreign  country. 


Et  reciproquement,  tout  espece 
de  marchandises  et  objets  de  com- 
merce, provenant  du  sol  ou  de 
1'industrie  du  Royaume  de  Prusse, 
ou  de  tout  autre  pays,  qui  pour- 
ront  legalement  etre  importes  dans 
les  ports  des  Etats  Unis  d'Amer- 
ique  sur  des  batimens  desdits 
Etats,  pourront  egalement  y  etre 
importes  sur  des  batimens  Prus- 
siens,  sans  payer  d'autres  ou  plus 
forts  droits  ou  charges,  de  quel- 
que  espece  ou  denomination  que 
ce  soit,  perc,us  au  nom  ou  au  profit 
du  Gouvernement,  des  autorites 
locales,  ou  d'etablissemens  par- 
ticuliers  quel-conques,  que  s'ils 
Etoient  importes  sur  des  batimens 
des  Etats  Unis  d'Amerique. 

ARTICLE  IV 

Afin  de  prevenir  tout  mesen- 
tendu  et  equivoque  possibles,  il 
est  declare  que  les  stipulations 
contenues  dans  les  deux  articles 
precedens  sont,  dans  toute  leur 
plenitude,  applicables  aux  bati- 
mens Prussiens  et  leurs  cargai- 
sons,  arrivant  dans  les  ports  des 
Etats  Unis  d'Amerique;  et  reci- 
proquement, aux  batimens  des 
dits  Etats,  et  leurs  cargaisons.  ar- 
rivant dans  les  ports  du  Royaume 
de  Prusse,  soit  que  les  dits  bati- 
mens viennent  des  ports  du  pays 
auquel  ils  appartiennent,  soit  de 
ceux  de  tout  autre  pays  etranger. 


54    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ARTICLE  V 

No  higher  or  other  duties  shall 
be  imposed  on  the  importation  into 
the  United  States  of  any  article 
the  produce  or  manufacture  of 
Prussia,  and  no  higher  or  other 
duties  shall  be  imposed  on  the  im- 
portation into  the  Kingdom  of 
Prussia  of  any  article  the  produce 
or  manufacture  of  the  United 
States,  than  are  or  shall  be  pay- 
able on  the  like  artic'i  being  the 
produce  or  manufacture  of  any 
other  foreign  country.  Nor  shall 
any  prohibition  be  imposed  on  the 
importation  or  exportation  of  any 
article  the  produce  or  manufacture 
of  the  United  States,  or  of  Prus- 
sia, to  or  from  the  ports  of  the 
United  States,  or  to  or  from  the 
ports  of  Prussia,  which  shall  not 
equally  extend  to  all  other  nations. 


ARTICLE  VI 

All  kinds  of  merchandise  and 
articles  of  commerce,  either  the 
produce  of  the  soil  or  of  the  indus- 
try of  the  United  States  of  Amer- 
ica, or  of  any  other  country,  which 
may  be  lawfully  exported  from 
the  ports  of  the  said  United  States 
in  national  vessels,  may  also  be  ex- 
ported therefrom  in  Prussian  ves- 
sels without  paying  other  or  higher 
duties  or  charges,  of  whatever 


ARTICLE  V 

II  ne  sera  impose  d'autres  ni  de 
plus  forts  droits  sur  1'importation 
dans  les  Etats  Unis,  des  articles 
provenant  du  sol  ou  de  1'industrie 
du  Royaume  de  Prusse ;  et  il  ne 
sera  impose  d'autres  ni  de  plus 
forts  droits,  sur  1'importation  dans 
le  Royaume  de  Prusse  des  arti- 
cles provenant  du  sol  ou  de  1'in- 
dustrie des  Etats  Unis,  que  ceux 
qui  sont,  ou  seront  imposes  sur 
les  memes  articles  provenant  du 
sol  ou  de  1'industrie  de  tout  autre 
pays  etranger.  De  meme  il  ne 
sera  impose  sur  1'importation  ou 
sur  1'exportation  des  articles  pro- 
venant du  sol  ou  de  1'industrie  des 
Etats  Unis,  ou  du  Royaume  de 
Prusse,  a  1'entree  ou  a  la  sortie 
des  ports  des  Etats  Unis,  ou  de 
ceux  du  Royaume  de  Prusse,  au- 
cune  prohibition  qui  ne  soit  pas 
egalement  applicable  a  toute  au- 
tre nation. 

ARTICLE  VI 

Toute  espece  de  marchandises  et 
objets  de  commerce  provenant  du 
sol  ou  de  1'industrie  des  Etats 
Unis,  ou  de  tout  autre  pays,  qui 
pourront  etre  legalement  exportes 
des  ports  des  dits  Etats,  sur  des 
batimens  nationaux,  pourront 
egalement  en  etre  exportes  sur  des 
batimens  Prussiens,  sans  payer 
d'autres  ni  de  plus  forts  droits  ou 
charges,  de  quelque  espece  ou  de- 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


55 


kind  or  denomination,  levied  in 
the  name  or  to  the  profit  of  the 
Government,  the  local  authorities, 
or  of  any  private  establishments 
whatsoever,  than  if  th?  same  mer- 
chandise or  produce  had  been  ex- 
ported in  vessels  of  the  United 
States  of  America. 

An  exact  reciprocity  shall  be 
observed  in  the  ports  of  the  King- 
dom of  Prussia,  so  that  all  kind 
of  merchandise  and  articles  of 
commerce,  either  the  produce  of 
the  soil  or  the  industry  of  the  said 
Kingdom,  or  of  any  other  coun- 
try, which  may  be  lawfully  ex- 
ported from  Prussian  ports  in  na- 
tional vessels,  may  also  be  ex- 
ported therefrom  in  vessels  of  the 
United  States  of  America,  with- 
out paying  other  or  higher  duties 
or  charges  of  whatever  kind  or 
denomination,  levied  in  the  name 
or  to  the  profit  of  the  Government, 
the  local  authorities,  or  of  any  pri- 
vate establishments  whatsoever, 
than  if  the  same  merchandise  or 
produce  had  been  exported  in 
Prussian  vessels. 


ARTICLE  VII 

The  preceding  articles  are  not 
applicable  to  the  coastwise  naviga- 
tion of  the  two  countries,  which  is 
respectively  reserved  by  each  of 
the  high  contracting  parties  ex- 
clusively to  itself. 


nomination  que  ce  soit,  pergus  au 
nom  ou  au  profit  du  Gouverne- 
ment,  des  autorites  locales,  ou 
d'etablissemens  particuliers  quel- 
conques,  que  si  ces  memes  mar- 
chandises  ou  denrees  avoient  ete 
exportees  par  batimens  des  Etats 
Unis  d'Amerique. 

Une  parfaite  reciprocite  sera 
observee  dans  les  ports  du  Ro- 
yaume  de  Prusse,  de  sorte  que 
toute  espece  de  marchandises  et 
objets  de  commerce,  provenant  du 
sol  ou  de  1'industrie  du  Royaume 
de  Prusse,  ou  de  tout  autre  pays, 
qui  pourront  etre  legalement  ex- 
portes  des  ports  du  dit  Royaume 
sur  des  batimens  nationaux,  pour- 
ront egalement  en  etre  exported 
sur  des  batimens  des  Etats  Unis 
d'Amerique  sans  payer  d'autres 
ou  de  plus  forts  droits  ou  charges, 
de  quelque  espece  ou  denomina- 
tion que  ce  soit,  perc.us  au  nom  ou 
au  profit  du  Gouvernement,  des 
autorites  locales,  ou  d'etablisse- 
mens particuliers  quelconques, 
que  si  ces  marchandises  ou  den- 
rees avoient  ete  exportees  sur  des 
batimens  Prussiens. 

ARTICLE  VII 

Les  articles  precedens  ne  sont 
pas  applicables  a  la  navigation  de 
cotes,  ou  cabotage  de  chacun  des 
deux  pays,  que  1'Une  et  1'Autre 
des  Hautes  Parties  Contractantes 
se  reservent  exclusivement. 


56    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ARTICLE  VIII 

No  priority  or  preference  shall 
be  given,  directly  or  indirectly,  by 
either  of  the  contracting  parties, 
nor  by  any  company,  corporation, 
or  agent,  acting  on  their  behalf  or 
under  their  authority,  in  the  pur- 
chase of  any  article  of  commerce, 
lawfully  imported,  on  account  of 
or  in  reference  to  the  character  of 
the  vessel,  whether  ir  be  of  the 
one  party  or  of  the  other,  in  which 
such  article  was  imported;  it  be- 
ing the  true  intent  and  meaning  of 
the  contracting  parties  that  no 
distinction  or  difference  whatever 
shall  be  made  in  this  respect. 


ARTICLE  IX 

If  either  party  shall  hereafter 
grant  to  any  other  nation  any  par- 
ticular favor  in  navigation  or 
commerce,  it  shall  immediately  be- 
come common  to  the  other  party, 
freely,  where  it  is  freely  granted 
to  such  other  nation,  or  on  yielding 
the  same  compensation,  when  the 
grant  is  conditional. 


ARTICLE  X 

The  two  contracting  parties  have 
granted  to  each  other  the  liberty 
of  having,  each  in  the  ports  of, 
the  other,  Consuls,  Vice-Consuls, 
Agents,  and  Commissaries  of  their 


ARTICLE  VIII 

II  ne  sera  accorde,  ni  directe- 
ment,  ni  indirectement,  par  1'Une 
ou  par  1'Autre  des  Parties  Con- 
tractantes,  ni  par  aucune  com- 
pagnie,  corporation,  ou  agent, 
agissant  en  son  nom,  ou  par  son 
autorite,  aucune  priorite  ou  pre- 
ference quelconque,  pour  1'achat 
d'aucun  objet  de  commerce,  le- 
galement  importe,  a  cause  ou  en 
consideration  de  la  nationalite  du 
navire  qui  auroit  importe  les  dits 
objets,  soit  qu'il  appartienne  a 
1'Une  des  Parties,  soit  a  1'Autre ; 
1'intention  bien  positive  des  Par- 
ties Contractantes  etant,  qu'au- 
cune  difference  ou  distinction 
quelconque  n'ait  lieu  a  cet  egard. 

ARTICLE  IX 

Si  1'Une  des  Parties  Contract- 
antes  accorde,  par  la  suite,  a  d'au- 
tres  nations,  quelque  faveur  parti- 
culiere,  en  fait  de  commerce  ou  de 
navigation,  cette  faveur  devien- 
dra  aussitot  commune  a  1'autre 
Partie,  qui  en  jouira  gratuite- 
ment,  si  la  concession  est  gratuite  ; 
ou  en  accordant  la  meme  compen- 
sation, si  la  concession  est  condi- 
tionnelle. 

ARTICLE  X 

Les  deux  Parties  Contractantes 
se  sont  accorde  mutuellement  la 
faculte  de  tenir,  dans  leurs  ports 
respectifs,  des  Consuls,  Vice-Con- 
suls, Agens  et  Commissaires  de 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


57 


own  appointment,  who  shall  enjoy 
the  same  privileges  and  powers  as 
those  of  the  most  favored  nations. 
But  if  any  such  Consul  shall  exer- 
cise commerce,  they  shall  be  sub- 
mitted to  the  same  laws  and  usages 
to  which  the  private  individuals  of 
their  nation  are  submitted,  in  the 
same  place. 

The  Consuls,  Vice-Consuls,  and 
Commercial  Agents  shall  have  the 
right,  as  such,  to  sit  as  judges  and 
arbitrators  in  such  differences  as 
may  arise  between  the  captains  and 
crews  of  the  vessels  belonging  to 
the  nation  whose  interests  are 
committed  to  their  charge,  without 
the  interference  of  the  local  au- 
thorities, unless  the  conduct  of  the 
crews  or  of  the  captain  should  dis- 
turb the  order  or  tranquillity  of  the 
country,  or  the  said  Consuls,  Vice- 
Consuls,  or  Commercial  Agents 
should  require  their  assistance  to 
cause  their  decisions  to  be  carried 
into  effect  or  supported.  It  is, 
however,  understood  that  this 
species  of  judgment  or  arbitration 
shall  not  deprive  the  contending 
parties  of  the  right  they  have  to 
resort,  on  their  return,  to  the  judi- 
cial authority  of  their  country. 

ARTICLE  XI 

The  said  Consuls,  Vice-Consuls, 
and  Commercial  Agents  are  au- 
thorised to  require  the  assistance 
of  the  local  authorities,  for  the 


leur  choix,  qui  jouiront  des  me- 
mes  privileges  et  pouvoirs  dont 
jouissent  ceux  des  nations  les 
plus  favorisees.  Mais  dans  le  cas 
ou  les  dits  Consuls  veuillent  faire 
le  commerce,  ils  seront  soumis 
aux  memes  lois  et  usages,  aux- 
quels  sont  soumis  les  particuliers 
de  leur  nation  a  1'endroit  ou  ils 
resident. 

Les  Consuls,  Vice  Consuls,  et 
Agens  commerciaux,  auront  le 
droit,  comme  tels,  de  servir  de 
juges  et  d'arbitres  dans  les  diffe- 
rens  qui  pourroient  s'elever  entre 
les  capitaines  et  les  equipages  des 
batimens  de  la  nation  dont  ils 
soignent  les  interets,  sans  que  les 
autorites  locales  puissent  y  inter- 
venir,  a  moins  que  la  conduite  des 
equipages  ou  du  capitaine  ne 
troublat  1'ordre  ou  la  tranquillite 
du  pays;  ou  que  les  dits  Consuls, 
Vice  Consuls  ou  Agens  commer- 
ciaux, ne  requissent  leur  interven- 
tion pour  faire  executer  ou  main- 
tenir  leurs  decisions.  Bien  entendu 
que  cette  espece  de  jugement  ou 
d'arbitrage  ne  sauroit,  pourtant, 
priver  les  parties  contendantes  du 
droit  qu'elles  ont,  a  leur  retour  de 
recourir  aux  autorites  judiciaires 
de  leur  pays. 

ARTICLE  XI 

Les  dits  Consuls,  Vice  Con- 
suls, ou  Agens  commerciaux,  se- 
ront autorises  a  requerir  1'assis- 
tance  des  autorites  locales,  pour  la 


58    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


search,  arrest,  and  imprisonment 
of  the  deserters  from  the  ships  of 
war  and  merchant  vessels  of  their 
country.  For  this  purpose  they- 
shall  apply  to  the  competent  tri- 
bunals, judges,  and  officers,  and 
shall  in  writing  demand  said  de- 
serters, proving,  by  the  exhibition 
of  the  registers  of  the  vessels,  the 
rolls  of  the  crew,  or  by  other 
official  documents,  that  such  indi- 
viduals formed  part  of  the  crews ; 
and,  on  this  reclamation  being  thus 
substantiated,  the  surrender  shall 
not  be  refused.  Such  deserters, 
when  arrested,  shall  be  placed  at 
the  disposal  of  the  said  Consuls, 
Vice-Consuls,  or  Commercial 
Agents,  and  may  be  confined  in  the 
public  prisons,  at  the  request  and 
cost  of  those  who  shall  claim  them, 
in  order  to  be  sent  to  the  vessels  to 
which  they  belonged,  or  to  others 
of  the  same  country.  But  if  not 
sent  back  within  three  months 
from  the  day  of  their  arrest,  they 
shall  be  set  at  liberty,  and  shall  not 
be  again  arrested  for  the  same 
cause.  However,  if  the  deserter 
should  be  found  to  have  committed 
any  crime  or  offence,  hr's  surrender 
may  be  delayed  until  the  tribunal 
before  which  his  case  shall  be  de- 
pending shall  have  pronounced  its 
sentence,  and  such  sentence  shall 
have  been  carried  into  effect. 


recherche,  1'arrestation,  la  deten- 
tion et  l'emprisonnement  des 
deserteurs  des  navires  de  guerre 
et  marchands  de  leur  pays;  ils 
s'adresseront,  pour  cet  objet,  aux 
tribunaux,  juges  et  officiers  com- 
petens,  et  reclameront,  par  ecrit, 
les  deserteurs  sus-mentionnes,  en 
prouvant,  par  la  communication 
des  registres  des  navires,  ou  roles 
de  1'equipage,  ou  par  d'autres 
documens  officiels,  que  de  tels  in- 
dividus  ont  fait  partie  desdits 
equipages  et  cette  reclamation 
ainsi  prouvee,  Textradition  ne 
sera  point  refusee.  De  tels  deser- 
teurs, lorsqu'ils  auront  etc  arretes, 
seront  mis  a  la  disposition  desdits 
Consuls,  Vice  Consuls  ou  Agens 
commerciaux,  et  pourront  etre  en- 
fermes  dans  les  prisons  publiques, 
a  la  requisition  et  aux  frais  de 
ceux  qui  les  reclament,  pour  etre 
envoyes  aux  navires  auxquels  ils 
appartenoient,  ou  a  d'autres  de  la 
meme  nation.  Mais  s'ils  ne  sont 
pas  renvoyes  dans  1'espace  de 
trois  mois,  a  compter  du  jour  de 
leur  arrestation,  ils  seront  mis  en 
liberte,  et  ne  seront  plus  arretes 
pour  la  meme  cause.  Toutefois, 
si  le  deserteur  se  trouvoit  avoir 
commis  quelque  crime  ou  delit,  il 
pourra  etre  sursis  a  son  extradi- 
tion, jusqu'a  ce  que  le  tribunal 
saisi  de  1'affaire,  aura  rendu  sa 
sentence,  et  que  celle-ci  ait  regu 
son  execution. 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


59 


ARTICLE  XII 

The  twelfth  article  of  the  treaty 
of  amity  and  commerce,  concluded 
between  the  parties  in  1785,  and 
the  articles  from  the  thirteenth  to 
the  twenty- fourth,  inclusive,  of 
that  which  was  concluded  at  Berlin 
in  1799,  with  the  exception  of  the 
last  paragraph  in  the  nineteenth 
article,  relating  to  treaties  with 
Great  Britain,  are  hereby  revived 
with  the  same  force  and  virtue  as 
if  they  made  part  of  the  context 
of  the  present  treaty,  it  being,  how- 
ever, understood  that  the  stipula- 
tions contained  in  the  articles  thus 
revived  shall  be  always  considered 
as  in  no  manner  affecting  the  trea- 
ties or  conventions  concluded  by 
either  party  with  other  powers, 
during  the  interval  between  the 
expiration  of  the  said  treaty  of 
1799,  and  the  commencement  of 
the  operation  of  the  present  treaty. 

The  parties  being  still  desirous, 
in  conformity  with  their  intention 
declared  in  the  twelfth  article  of 
the  said  treaty  of  1799,  to  establish 
between  themselves,  or  in  concert 
with  other  maritime  Powers,  fur- 
ther provisions  to  ensure  just  pro- 
tection and  freedom  to  neutral 
navigation  and  commerce,  and 
which  may,  at  the  same  time,  ad- 
vance the  cause  of  civilization  and 
humanity,  engage  again  to  treat  on 
this  subject  at  some  future  and 
convenient  period. 


ARTICLE  XII 

L'Article  douze  du  Traite 
d'Amitie  et  de  Commerce,  conclu 
entre  les  Parties  en  1785;  et  les 
Articles  Treize  et  suivans,  jusqu'a 
1'Article  Vingt-quatre,  inclusive- 
ment,  du  Traite  conclu  a  Berlin, 
en  1799,  en  exceptant  le  dernier 
paragraphe  de  1'Article  Dix-neuf, 
touchant  les  Traites  avec  la 
Grande  Bretagne,  sont  remis  en 
vigueur,  et  auront  la  meme  force 
et  valeur  que  s'ils  faisoient  partie 
du  present  Traite:  il  est  entendu, 
cependant  que  les  stipulations 
contenues  dans  les  Articles  ainsi 
remis  en  vigueur,  seront  tou jours 
censees  ne  rien  changer  aux  Trai- 
tes et  Conventions  conclus  de  part 
et  d'autre,  avec  d'autres  Puis- 
sances, dans  1'intervalle  ecoule  en- 
tre 1'expiration  dudit  Traite  de 
1799,  et  le  commencement  de  la 
mise  en  vigueur  du  present  Traite. 

Les  Parties  Contractantes  de- 
sirant  toujours,  conformement  a 
1'intention  declaree  dans  1'Article 
Douze  dudit  Traite  de  1799,  pour- 
voir,  entre  Elles,  ou  conjointe- 
ment  avec  d'autres  Puissances 
maritimes,  a  des  stipulations  ulte- 
rieures  qui  puissent  servir  a  ga- 
rantir  une  juste  protection  et  li- 
berte  au  commerce  et  a  la  navi- 
gation des  neutres,  et  a  aider  la 
cause  de  la  civilisation  et  de  1'hu- 
manite,  s'engagent  ici,  comme 
alors  a  concerter  ensemble  sur  ce 
sujet,  a  quelque  epoque  future  et 
convenable. 


60    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


ARTICLE  XIII 

Considering  the  remoteness  of 
the  respective  countries  of  the  two 
high  contracting  parties,  and  the 
uncertainty  resulting  therefrom, 
with  respect  to  the  various  events 
which  may  take  place,  it  is  agreed 
that  a  merchant  vessel  belonging  to 
either  of  them,  which  may  be 
bound  to  a  port  supposed  at  the 
time  of  its  departure  to  be  block- 
aded, shall  not,  however,  be  cap- 
tured or  condemned  for  having  at- 
tempted a  first  time  to  enter  said 
port,  unless  it  can  be  proved  that 
said  vessel  could  and  ought  to  have 
learnt,  during  its  voyage,  that  the 
blockade  of  the  place  in  question 
still  continued.  But  all  vessels 
which,  after  having  been  warned 
off  once  shall,  during  the  same 
voyage,  attempt  a  second  time  to 
enter  the  same  blockaded  port, 
during  the  continuance  of  the  said 
blockade,  shall  then  subject  them- 
selves  to  be  detained  and  con- 
demned. 

ARTICLE  XIV 

The  citizens  or  subjects  of  each 
party  shall  have  power  to  dispose 
of  their  personal  goods  within  the 
jurisdiction  of  the  other,  by  testa- 
ment, donation,  or  otherwise ;  and 
their  representatives,  being  citi- 
zens or  subjects  of  the  other 
party,  shall  succeed  to  their  said 
personal  goods,  whether  by  testa- 


ARTICLE  XIII 

Vu  1'eloignement  des  Pays  res- 
pectifs  des  deux  Hautes  Parties 
Contractantes,  et  1'incertitude  qui 
en  resulte  sur  les  divers  evene- 
mens  qui  peuvent  avoir  lieu ;  il  est 
convenu  qu'un  batiment  mar- 
chand,  appartenant  a  1'Une  d'El- 
les,  qui  se  trouveroit  destine  pour 
un  port  suppose  bloque,  au  mo- 
ment du  depart  de  ce  batiment,  ne 
sera  cependant  pas  capture  ou 
condamne,  pour  avoir  essaye  une 
premiere  fois  d'entrer  dans  ledit 
port,  a  moins  qu'il  ne  puisse  etre 
prouve  que  ledit  batiment  avoit 
pu  et  du  apprendre  en  route  que 
1'etat  de  blocus  de  la  place  en 
question  duroit  encore:  mais  les 
batimens  qui,  apres  avoir  ete  ren- 
voyes  une  fois,  essayeroient,  pen- 
dant le  meme  voyage  d'entrer  une 
seconde  fois  dans  le  meme  port 
bloque,  durant  la  continuation  de 
ce  blocus,  se  trouveront  alors  su- 
jets  a  etre  detenus  et  condamnes. 


ARTICLE  XIV 

Les  Citoyens  ou  Sujets  de  cha- 
cune  des  Parties  Contractantes, 
auront,  dans  les  Etats  de  Tautre, 
la  liberte  de  disposer  de  leurs 
biens  personnels,  soit  par  testa- 
ment, donation,  ou  autrement,  et 
leurs  heritiers,  etant  sujets  ou 
citoyens  de  1'autre  Partie  Con- 
tractante,  succederont  a  leurs 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


61 


ment  or  ab  intestate,  and  may  take 
possession  thereof,  either  by 
themselves  or  by  others  acting  for 
them,  and  dispose  of  the  same  at 
their  will,  paying  such  dues  only 
as  the  inhabitants  of  the  country 
wherein  the  said  goods  are  shall 
be  subject  to  pay  in  like  cases. 
And  in  case  of  the  absence  of  the 
representative  such  care  shall  be 
taken  of  the  said  goods  as  would 
be  taken  of  the  goods  of  a  na- 
tive, in  like  case,  until  the  law- 
ful owner  may  take  measures  for 
receiving  them.  And  if  question 
should  arise  among  several  claim- 
ants to  which  of  them  said  goods 
belong,  the  same  shall  be  decided 
finally  by  the  laws  and  judges  of 
the  land  wherein  the  said  goods 
are.  And  where,  on  the  death  of 
any  person  holding  real  estate 
within  the  territories  of  the  one 
party,  such  real  estate  would,  by 
the  laws  of  the  land,  descend  on  a 
citizen  or  subject  of  the  other, 
were  he  not  disqualified  by  alien- 
age, such  citizen  or  subject  shall 
be  allowed  a  reasonable  time  to 
sell  the  same,  and  to  withdraw  the 
proceeds  without  molestation,  and 
exempt  from  all  duties  of  detrac- 
tion, on  the  part  of  the  Govern- 
ment of  the  respective  States.  But 
this  article  shall  not  derogate  in 
any  manner  from  the  force  of  the 
laws  already  published,  or  here- 
after to  be  published,  by  His  Maj- 


biens,  soit  en  vertu  d'un  testa- 
ment, ou  ab  intestato,  et  ils  pour- 
ront  en  prendre  possession,  soit 
en  personne,  soit  par  d'autres 
agissant  en  leur  place,  et  en  dis- 
poseront  a  leur  volonte,  en  ne 
payant  d'autres  droits  que  ceux 
auxquels  les  habitans  du  pays  ou 
se  trouvent  lesdits  biens  sont  as- 
sujettis  en  pareille  occasion.  En 
cas  d'absence  des  heritiers,  on 
prendra  provisoirement  desdits 
biens  les  memes  soins  qu'on  au- 
roit  pris  en  pareille  occasion  des 
biens  des  natifs  du  pays,  jusqu'a 
ce  que  le  proprietaire  legitime  ait 
agree  des  arrangemens  pour  re- 
cueillir  1'heritage.  S'il  s'eleve 
des  contestations  entre  differens 
pretendans  ayant  droit  a  la  suc- 
cession, elles  seront  decidees  en 
dernier  ressort,  selon  les  lois  et 
par  les  juges  du  pays  ou  la  suc- 
cession est  vacante.  Et  si,  par  la 
mort  de  quelque  personne  posse- 
dant  des  biens-fonds  sur  le  terri- 
toire  de  1'une  des  Parties  Contrac- 
tantes,  ces  biens-fonds  venoient  a 
passer  selon  les  lois  du  pays,  a 
un  citoyen  ou  sujet  de  1'autre  Par- 
tie,  celui-ci,  si,  par  sa  qualite 
d'etranger,  il  est  inhabile  a  les 
posseder,  obtiendra  un  delai  con- 
venable  pour  les  vendre,  et  pour 
en  retirer  le  produit  sans  obstacle, 
et  exempt  de  tout  droit  de  re- 
tenue  de  la  part  du  Gouvernement 
des  Etats  respectifs.  Mais  cet 


62    TREATIES  BETWEEN  THE  UNITED  STATES  AND  PRUSSIA 


esty  the  King  of  Prussia,  to  pre- 
vent the  emigration  of  liis  subjects. 


ARTICLE  XV 

The  present  treaty  shall  con- 
tinue in  force  for  twelve  years, 
counting  from  the  day  of  the  ex- 
change of  the  ratifications ;  and  if 
twelve  months  before  the  expira- 
tion of  that  period,  neither  of  the 
high  contracting  parties  shall  have 
announced,  by  an  official  notifica- 
tion to  the  other,  its  intention  to 
arrest  the  operation  of  said  treaty, 
it  shall  remain  binding  for  one 
year  beyond  that  time,  and  so  on 
until  the  expiration  of  the  twelve 
months,  which  will  follow  a  sim- 
ilar notification,  whatever  the  time 
at  which  it  may  take  place. 

ARTICLE  XVI 

This  treaty  shall  be  approved 
and  ratified  by  the  President  of  the 
United  States  of  America,  by  and 
with  the  advice  and  consent  of  the 
Senate  thereof,  and  by  His  Maj- 
esty the  King  of  Prussia,  and  the 
ratifications  shall  be  exchanged  in 
the  city  of  Washington,  within 
nine  months  from  the  date  of  the 
signature  hereof,  or  sooner  if  pos- 
sible. 

In  faith  whereof  the  respective 
Plenipotentiaries  have  signed  the 


article  ne  derogera  en  aucune  ma- 
niere  a  la  force  des  lois  qui  ont 
deja  ete  publiees,  ou  qui  le  seront 
par  la  suite,  par  Sa  Majeste  le 
Roi  de  Prusse,  pour  prevenir 
1'emigration  de  ses  sujets. 

ARTICLE  XV 

Le  present  Traite  sera  en  vi- 
gueur  pendant  douze  annees  a 
compter  du  jour  de  1'echange  des 
Ratifications ;  et  si,  douze  mois 
avant  Fexpiration  de  ce  terme,  ni 
1'Une  ni  1'Autre  des  Hautes  Par- 
ties Contractantes,  n'annonce  a 
1'autre,  par  une  declaration  offi- 
cielle,  son  intention  d'en  faire  ces- 
ser  1'effet,  ledit  Traite  restera  ob- 
ligatoire  pendant  un  an  au-dela  de 
ce  terme,  et  ainsi  de  suite,  jusqu'a 
expiration  des  douze  mois  qui  sui- 
vront  une  telle  declaration,  a  quel- 
que  epoque  qu'elle  ait  lieu. 

ARTICLE  XVI 

Le  present  Traite  sera  approuve 
et  ratifie  par  Sa  Majeste  le  Roi 
de  Prusse,  et  par  le  President  des 
Etats  Unis  d'Amerique,  par,  et 
avec  1'avis  et  le  consentement  du 
Senat  desdits  Etats,  et  les  Ratifi- 
cations en  seront  echangees  en  la 
ville  de  Washington,  dans  1'es- 
pace  de  neuf  mois,  a  dater  de  ce 
jour,  ou  plutot,  si  faire  se  peut. 

En  foi  de  quoi  les  Plenipoten- 
tiaires  respectifs  ont  signe  les  Ar- 


TREATY  OF  COMMERCE  AND  NAVIGATION,  1828 


63 


above  articles  both  in  the  French 
and  English  languages,  and  they 
have  thereto  affixed  their  seals ; 
declaring,  nevertheless,  that  the 
signing  in  both  languages  shall 
not  be  brought  into  precedent,  nor 
in  any  way  operate  to  the  preju- 
dice of  either  party. 

Done  in  triplicate  at  the  city  of 
Washington  on  the  first  day  of 
May,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twen- 
ty-eight, and  the  fifty-second  of 
the  Independence  of  the  United 
States  of  America. 
[L.  s.]  H.  CLAY. 

[L.  S.]    LUDWIG    NlEDERSTETTER. 


tides  ci-dessus,  tant  en  franqois 
qu'en  anglois,  et  y  ont  appose 
leurs  sceaux;  declarant,  toute- 
fois,  que  la  signature  dans  ces 
deux  langues,  ne  doit  pas,  par  la 
suite,  etre  citee  comme  example, 
ni,  en  aucune  maniere,  porter  pre- 
judice aux  Parties  Contractantes. 
Fait  par  triplicata  en  la  Cite  de 
Washington,  le  Premier  Mai,  1'An 
de  Grace  Mil  huit  cent  vingt-huit, 
et  le  cinquante  deuxieme  de  1'In- 
dependance  des  Etats  Unis  d'Ame- 
rique. 

[L.  s.]   LUDWIG  NIEDBRSTETTER. 
[L.  s.]   H.  CLAY, 


Decisions  of  Federal  Courts 

Opinions  of  Attorneys  General 

Neutrality  Proclamation  of  1870 


Decisions  of  Federal  Courts 

THE  BARK  ELWINE  K REP LIN1 

Seamen's  Wages. — Desertion. — Imprisonment  on  Shore. — Consul. — 
Treaty  With  Prussia. — Jurisdiction. — Parties. — Practice. — Minor. 
— Executive  Recognition. 

A  Prussian  bark,  with  a  crew  whose  term  of  service  had  not  expired,  was 
laid  up  at  Staten  Island,  on  account  of  the  war  between  Prussia  and  France. 
A  difficulty  arose  between  the  captain  and  the  crew,  and  they  demanded 
leave  to  go  and  see  the  consul.  This  the  captain  refused  to  allow,  but 
agreed  that  one  of  them,  named  L.,  might  go.  They  insisted  that  they 
would  all  go,  and  the  captain  went  ashore  to  get  the  aid  of  the  police. 
After  he  had  gone,  the  crew  informed  the  mate  that  they  were  going  to 
see  the  consul,  and  went  ashore,  without  serious  objection  from  the  mate. 
The  captain,  returning,  was  told  by  the  mate  that  the  men  had  gone  ashore, 
and  high  words  passed  between  them,  which  resulted  in  the  mate's  saying 
that  he  would  go  too,  and  he  went  ashore,  without  objection  from  the 
captain.  The  captain,  with  a  police  officer,  overtook  the  crew,  and  all  hands 
went  before  a  police  justice,  where  the  captain  made  a  complaint  against 
the  mate  and  the  crew  for  mutiny  and  desertion.  The  justice  informed  the 
captain  that  he  had  no  jurisdiction,  but  he  directed  a  policeman  to  take  the 
men  into  custody,  and  they  were  locked  up.  The  captain  then  went  before 
the  Prussian  consul,  and  made  complaint,  requesting  that  the  crew  be  pun- 
ished, and  that  they  be  kept  in  custody  preliminarily,  and  stating  that  he 
could  not  receive  the  mate  on  board  again.  The  consul  then  issued  a  requisi- 
tion to  a  commissioner  of  the  Circuit  Court  of  the  United  States,  stating 
that  the  men  had  deserted,  and  asking  for  a  warrant  to  arrest  the  men,  and, 
"if  said  charge  be  true,"  that  they  be  detained  until  there  should  be  an 
opportunity  to  send  them  back.  The  requisition  the  captain  took  to  the 
police  justice,  who  thereupon,  without  examination,  committed  all  the  men 
to  the  county  jail,  where  they  lay  for  ten  days.  On  the  direction  of  the 
consul,  they  were  then  released,  and  came  to  the  consul's  office,  where 
they  were  advised  to  go  to  the  ship,  and  ask  the  captain  for  their  wages. 
Some  of  them  went,  and  the  captain  agreed  to  meet  the  crew  at  the  consul's 
office  next  day.  He  came  there,  but  the  parties  failed  to  meet  each  other, 
and  thereafter  the  seamen  executed  assignments  of  their  wages  to  the  mate, 


M  Benedict,  413;  8  Federal  Cases,  592  (Case  4427),  December,  1870. 

This  case  was  reversed  by  the  Circuit  Court,  on  the  ground  that  this  court 
was  prohibited,  under  the  treaty  with  Prussia,  from  exercising  jurisdiction.  An 
application  was  made  to  the  Supreme  Court  for  a  mandamus,  to  compel  the 
Circuit  Court  to  pass  upon  the  merits,  but  was  denied.  Post,  pp.  74  and  82. 


68  DECISIONS  OF  FEDERAL  COURTS 

but  without  consideration,  and  he  filed  this  libel  against  the  vessel,  to  recover 
the  wages  of  all.  The  captain  was  part  owner  of  the  ship.  He  defended 
the  suit,  and  claimed  that  the  men  had  forfeited  their  wages  by  desertion ; 
that  they  had  agreed  in  the  articles  not  to  bring  the  suit ;  and  that  the  court, 
under  the  treaty  between  the  United  States  and  Prussia,  had  no  jurisdiction. 

Held,  That,  as  to  the  mate  and  L.,  there  could  be  no  pretense  of  desertion, 
for  they  left  the  vessel  with  the  captain's  consent; 

That,  as  the  other  seamen  only  left  the  ship,  without  taking  their  clothes,  to  go 
and  see  the  consul,  the  charge  of  desertion  was  not  made  out  against  them ; 

That  the  conduct  of  the  captain,  in  imprisoning  the  men,  was  unlawful,  and 
sufficient  to  dissolve  the  contract  of  the  mariners ; 

That  no  law  permits  the  imprisonment  of  deserters  in  our  jails,  except  on  proof 
of  the  facts  before  a  competent  tribunal; 

That  the  men  were  not  prevented  from  bringing  this  suit  by  the  clause  in  the 
article  referring  to  that  provision  of  the  German  mercantile  law,  that 
"the  seaman  is  not  allowed  to  sue  the  master  in  a  foreign  port,"  because 
this  is  not  a  suit  against  the  master,  and  the  master  having^  by  his  unlawful 
conduct,  absolved  the  men  from  their  agreement,  had  absolved  them  from 
this  portion  of  it  with  the  rest; 

That  the  clause  in  the  treaty  between  the  United  States  and  Prussia,  that  "the 
consuls,  vice-consuls,  and  commercial  agents  shall  have  the  right,  as  such, 
to  act  as  judges  and  arbitrators,  in  such  differences  as  may  arise  between 
the  captains  and  crews  of  the  vessels  belonging  to  the  nation  whose  interests 
are  committted  to  their  charge,  without  the  interference  of  the  local  authori- 
ties, unless,  etc.,  etc.,"  was  not  sufficient  to  oust  this  court  of  its  jurisdiction 
over  this  controversy. 

Whether  this  clause  has  any  application  to  suits  in  rent — quaere. 

That  the  Prussian  consul  had  not  acted  in  this  matter  as  judge  or  arbitrator, 
which  words  must  be  taken  in  their  ordinary  sense,  implying  investigation 
of  facts  upon  evidence,  the  exercise  of  judgment  as  to  their  effect,  and  a 
determination  thereon ; 

That  the  consul  is  not  a  court,  and  neither  his  record  nor  his  testimony  is 
conclusive  on  this  court; 

That,  as  the  consul,  though  really  appointed  as  consul  of  the  North  German 
Union,  was  recognized  by  the  executive  department  as  consul  of  Prussia  by 
virtue  of  such  appointment,  the  action  of  the  executive  was  binding  on  the 
court,  and  he  must  be  held  to  be  the  Prussian  consul ; 

That  the  seamen  might  file  a  petition  to  be  now  made  colibellants,  and  on  such 
petition  being  filed,  and  the  cancellation  of  their  assignments  to  the  mate, 
they  would  be  entitled  to  decrees  for  their  wages. 

In  admiralty,  minors  are  allowed  to  sue  for  wages  in  their  own  names. 

BENEDICT,  District  Judge. 

Again,  it  is  said  that  this  is  a  Prussian  vessel,  and  therefore  the 
court  is  without  jurisdiction  in  the  premises  by  reason  of  the  treaty 
between  the  United  States  and  Prussia,  ratified  in  1828  (U.  S.  Stat.  L., 


THE  BARK    ELWINE  K REP LIN  69 

vol.  8,  p.  382). x  This  position,  which  has  been  urged  upon  my  con- 
sideration with  earnestness  and  ability,  has  received  my  careful  con- 
sideration. The  provision  of  the  treaty  is  as  follows :  "The  consuls, 
vice-consuls  and  commercial  agents  shall  have  the  right,  as  such,  to 
sit  as  judges  and  arbitrators  in  such  differences  as  may  arise  between 
the  captains  and  crews  of  the  vessels  belonging  to  the  nation  whose 
interests  are  committed  to  their  charge,  without  the  interference  of 
the  local  authorities,  unless  the  conduct  of  the  crews  or  of  the  captain 
should  disturb  the  order  or  tranquillity  of  the  country,  or  the  said 
consuls,  vice-consuls  or  commercial  agents  should  require  their  assist- 
ance to  cause  their  decisions  to  be  carried  into  effect  or  supported.  It 
is,  however,  understood  that  this  species  of  judgment  or  arbitration 
shall  not  deprive  the  contending  parties  of  the  right  they  have  to  resort, 
on  their  return,  to  the  judicial  authority  of  their  country." 

In  considering  the  effect  of  this  treaty  in  the  present  case,  I  remark 
first,  that  its  language  does  not  precisely  cover  an  action  in  rent  like 
the  present.  Such  an  action  is  more  than  a  mere  difference  between 
the  master  and  the  crew.  It  involves  the  question  of  lien  upon  the 
ship  and  her  condemnation  and  sale  to  pay  the  same.  In  the  absence 
of  any  express  words,  it  is  hard  to  infer  that  it  was  intended  to 
confer  upon  consuls  and  vice-consuls,  the  power  to  direct  a  con- 
demnation and  sale  of  a  ship — a  proceeding  which  brings  up,  for 
determination,  many  questions  besides  those  relating  to  seamen. 
Moreover,  the  statute  of  August  8,  1846,2  which  was  passed  to  render 
effective  this  provision  of  this  treaty,  confers  upon  the  Commissioners 
of  the  Circuit  Court  full  power,  authority  and  jurisdiction  to  carry  into 
effect  the  award,  arbitration  or  decree  of  the  consul,  and  for  that  pur- 
pose to  issue  remedial  process,  mesne  and  final,  and  to  enforce  obedience 
thereto  by  imprisonment.  It  certainly  can  not  be  supposed  that  it  was 
the  intention  to  give  to  the  Commissioners  of  the  Circuit  Court  power 
to  make  a  decree  in  rent,  and  direct  the  sale  of  a  ship.  This  position, 
that  the  treaty  is  not  applicable  to  the  present  case  because  it  is  a  pro- 
ceeding in  rem,  which  did  not  strike  me  with  much  force  upon  the  argu- 
ment, has  gained  strength  in  my  mind  by  reflection,  and  I  confess  that  I 
am  now  inclined  to  the  opinion  that  it  is  well  taken ;  but  I  do  not  intend 
to  rest  my  determination  upon  it.  Nor  do  I  discuss  the  position  that 
the  treaty  was  not  intended  to  apply  to  any  difference,  except  personal 


''•Ante,  p.  SO. 

2  U.  S.  Statutes  at  Large,  vol.  9,  p.  78. 


70  DECISIONS  OF  FEDERAL  COURTS 

differences,  between  the  master  and  the  seamen  alone,  such  as  assaults 
and  the  like,  and  does  not  cover  differences  as  to  wages,  to  which  the 
owners  as  well  as  the  ship  are  always  real  parties. 

But  I  pass  on  to  consider  whether  the  effect  of  this  treaty  is  to 
prevent  the  Courts  of  Admiralty  of  the  United  States  from  taking 
cognizance  of  any  action  brought  by  seamen  to  recover  wages  earned 
by  them  on  board  of  a  Prussian  vessel.  At  the  outset,  it  appears 
strange  to  hear  it  contended  that  the  jurisdiction  of  the  District  Courts 
of  the  United  States  is  thus  to  be  limited,  because  of  an  agreement 
arrived  at  between  Prussia  and  our  Government,  as  to  the  jurisdiction 
of  our  own  courts.  Courts  are  created  and  their  jurisdiction  fixed  by 
the  law-making  power;  and  the  extent  of  their  jurisdiction  does  not 
appear  to  be  a  fit  subject  of  an  agreement  with  a  foreign  Power.  If, 
in  any  case,  the  powers  exercised  by  the  courts  become  a  subject  of 
discussion  between  our  Government  and  a  foreign  nation,  and  any 
limitation  of  the  jurisdiction,  already  conferred  by  law,  be  found  to 
be  desirable,  the  natural,  if  not  the  only  way  of  accomplishing  such  a 
result  would  be  by  the  action  of  the  law-making  power,  instead  of  the 
treaty-making  power.  It  appears  reasonable,  therefore,  at  least  to 
require  that  an  intention  to  accomplish  such  a  result  by  a  treaty,  should 
be  manifested  by  express  words.  The  treaty  under  consideration  con- 
tains no  such  definite  provision.  It  simply  declares  that  the  consuls 
shall  have  the  right  to  sit  as  judges  and  arbitrators  in  certain  cases, 
without  the  interference  of  the  local  authorities,  which  is  a  very  dif- 
ferent thing  from  saying  that  the  courts  of  the  United  States  shall 
not  have  jurisdiction  in  such  cases.  Furthermore,  the  law-making 
power  established  the  District  Courts  of  the  United  States  and  the 
jurisdiction  thereof,  and  gave  to  them,  in  civil  cases  of  admiralty  and 
maritime  jurisdiction,  all  the  judicial  power  vested  in  the  national  Gov- 
ernment by  the  Constitution ;  and  it  is  not  to  be  lightly  supposed  that 
the  President,  acting  with  the  advice  of  the  Senate  as  the  treaty- 
making  power,  has  undertaken  to  repeal,  pro  tanto,  an  existing  law 
relating  to  the  jurisdiction  of  the  courts,  and  to  remove  from  the  juris- 
diction of  the  District  Courts  certain  classes  of  actions,  and  that  by 
reason  of  their  subject-matter,  for  the  provision  in  this  treaty  is  not 
confined  by  its  language  to  Prussian  subjects,  but  applies  to  all  seamen 
on  Prussian  vessels  without  regard  to  their  nationality.  It  seems  to 
me  that  no  such  intention  should  be  imputed  to  the  treaty,  if  any  other 
can  be  discerned — and  another,  and  a  reasonable  intention  can  be  dis- 


THE  BARK    ELWINE  KREPLIN  71 

cerned  when  we  consider,  in  connection  with  the  treaty,  the  well- 
known  practice  of  maritime  courts  in  respect  to  actions  brought  by 
seamen  to  recover  wages  earned  on  foreign  vessels.  Such  actions, 
Courts  of  Admiralty  have  long  been  accustomed  to  entertain,  or  to 
decline,  in  their  discretion.  Ordinarily,  in  the  exercise  of  a  sound 
discretion,  they  have  refused  to  entertain  such  actions,  when  the  consul 
of  the  foreign  Power  shows  reasonable  grounds  for  such  declination, 
and  his  willingness  to  determine  the  matter  in  controversy.  (The  Nina, 
W.  &  B.  Ad.  180,  n.) 

Having  this  practice  in  view  it  may  be  well  inferred,  from  the  lan- 
guage used  in  this  treaty,  that  the  object  of  the  provision  in  question 
was  to  insure,  so  far  as  possible,  without  a  repeal  of  the  existing 
law,  a  declination  of  such  actions  by  the  courts  in  all  cases  where  the 
consul  has  acted,  and  perhaps  also  where  he  expresses  a  willingness 
to  act,  as  judge  or  arbitrator  between  the  parties — thus  giving  to  the 
foreign  nation  the  guarantee  of  this  nation  for  the  continued  exercise, 
by  the  courts,  of  that  sound  discretion  which  has  ordinarily  been  exer- 
cised, and  committing  the  nation  to  answer  any  demand  which  might 
arise  from  any  omission  by  its  courts  to  exercise  such  a  discretion  in 
this  class  of  cases.  Such  an  effect  given  to  the  treaty  appears  to 
my  mind  to  be  reasonable  and  sufficient  to  accomplish  all  that  was 
intended.  To  hold  that  the  treaty  repeals  pro  tanto  the  act  establishing 
the  District  Courts,  and  ousts  them  of  all  jurisdiction  in  this  class  of 
cases,  would  permit  consuls  to  refuse  to  act,  and  at  the  same  time 
withhold  from  seamen — and  American  citizens,  it  may  be — all  right 
of  resort  to  the  courts  of  the  land.  It  would  give  opportunity  for 
great  frauds,  and  open  a  wide  door  for  the  oppression  of  a  class  of 
men  entitled  by  the  maritime  law,  above  all  others,  to  the  protection 
of  maritime  courts.  Of  the  use  which  would  be  made  of  such  a 
construction  of  the  treaty,  the  present  attempt,  in  violation  of  all  law, 
to  appropriate  some  $1,100  of  the  earnings  of  these  men,  is  not  a 
bad  illustration. 

Under  the  view  of  the  treaty  above  indicated,  I  am  thus  brought  to 
consider  whether  the  evidence  sustains  the  averment,  that  the  consul 
general  of  Prussia  has  already  cognizance  as  a  judge  or  arbitrator  of 
the  demand  of  these  seamen,  and  makes  out  a  case  where,  for  that 
reason,  this  court  should  decline  to  entertain  the  action. 

The  words  "judge  and  arbitrator,"  used  in  the  treaty,  must  be 
taken  in  their  ordinary  significance.  They  imply  investigation  of  the 


72  DECISIONS  OF  FEDERAL  COURTS 

facts  upon  evidence,  the  exercise  of  judgment  as  to  the  effect  to  be 
given  thereto  and  a  determination  therefrom.  And  the  use  of  these 
words  indicate  an  intention  not  to  deprive  the  seamen  of  a  full  and 
fair  hearing  of  their  cause  and  a  decision  thereof.  If  such  a  hearing 
had  been  given  these  men  by  the  consul,  the  case  would  have  been 
different.  But  here  nothing  has  been  done  which  can  in  any  fair 
sense  be  called  a  hearing  of  the  cause.  The  consul  has  not  even  gone 
through  the  form  of  sitting  as  judge  or  arbitrator  in  respect  to  the 
demands  of  these  men.  He  examined  no  witnesses,  he  did  not  bring 
the  parties  before  him,  and  he  made  no  definite  determination  what- 
ever. The  men  say  that  he  refused  to  hear  their  story  at  all.  The 
mate  swears  that  he  demanded  to  see  the  captain's  charge  against  him, 
and  he  was  refused.  The  vice-consul  denies  this,  and  says  that  he 
did  listen  to  the  men,  and  because  they  admitted  themselves  deserters, 
there  was  nothing  to  do  but  to  tell  them  that  they  had  forfeited  their 
wages,  which  he  did.  But  he  can  not  say  what  persons  admitted  hav- 
ing deserted,  and  on  cross-examination  he  shows  that  the  admission 
was  simply  an  admission  by  some,  he  does  not  know  whom,  of  having 
left  the  vessel  without  leave.  He  admits  having  urged  the  men  to  go 
and  see  the  captain,  and  expressed  confidence  that  if  they  spoke  civil 
the  master  would  pay  them  their  wages,  which  appears  to  be  incon- 
sistent with  the  idea  that  he  had  passed  on  the  demand  and  adjudged 
the  men  not  entitled  to  any  wages  whatever. 

The  consul  is  not  a  court,  and  neither  his  record  nor  his  testimony  is 
conclusive  on  this  court.  He  can  not  shut  his  door  in  the  face  of 
parties  and  then,  by  declaring  that  he  has  adjudicated  upon  the  demand, 
cut  them  off  from  a  resort  to  the  courts.  Before  he  can  call  upon  the 
courts  to  decline  to  entertain  the  action,  he  must  show  that  he  has  given 
or  is  willing  to  give,  to  the  seamen  that  hearing  which  the  treaty 
intends  they  should  have.  Here  the  vice-consul  himself  testifies,  "No 
adjudication  was  made  in  writing — a  memorandum  only  was  made.  It 
was  noted  on  the  protocol  as  follows:  'A  requisition  has  been  made 
and  given  to  the  captain  to  be  given  to  the  court.'  "  The  making  such 
an  entry  is  not  sitting  as  judge  or  arbitrator  on  the  present  demand. 
To  hold,  on  such  proof,  that  the  vice-consul  has  acted  as  judge  or  as 
arbitrator  in  respect  to  this  demand,  would  countenance  a  mode  of 
procedure  which  I  should  be  sorry  to  see  obtain.  My  conclusion,  there- 
fore, is  that  there  has  been  no  such  examination  and  adjudication  of 
the  matter  in  hand  by  the  consul  as  the  courts  require  and  the  treaty 
intends  to  secure. 


THE  BARK    ELWINE  KREPLIN  73 

In  the  absence  then  of  any  legal  limitation  of  the  jurisdiction  of  the 
court  by  the  treaty,  and  in  the  absence  of  any  proof  of  such  action 
on  the  part  of  the  consul  as  should  call  upon  the  court  to  decline  to 
entertain  the  action,  I  deem  it  my  duty  to  proceed  to  render  a  decree — 
and  I  do  this  the  more  willingly  because  the  master  of  this  vessel  is  half 
owner  of  her,  and  is  here  present,  where  also  the  seamen  are — and 
because  the  ship  is  laid  up  here  by  reason  of  war,  nor  can  it  be  told 
when,  if  ever,  she  will  return  to  her  home.  It  is  a  vain  thing,  there- 
fore, to  say  to  these  sailors,  who,  although  having  some  $1,100  of 
wages  due,  and  unpaid,  are  left  paupers,  that  they  must  go  to  Prussia, 
and  there  await  the  return  of  the  ship  in  order  to  enforce  their  demand. 
If  they  can  not  now  maintain  this  action,  they  are  practically  deprived 
of  all  remedy,  and  thrown  upon  this  community  penniless.  Against 
such  a  result  my  sense  of  justice  revolts,  and  I  am  unwilling  to  believe 
that  it  is  compelled  by  the  law.  I,  therefore,  without  hesitation,  pro- 
nounce in  this  case  the  decree  which  the  maritime  law,  applied  to  the 
facts,  requires,  and  condemn  the  vessel  to  pay  the  wages  of  the  men. 

In  considering  this  case  thus  far,  I  have  treated  the  action  of  the 
vice-consul  as  equivalent  to  that  of  the  consul,  and  have  so  spoken  of 
it.  In  point  of  fact,  Dr.  Roesing,  the  consul  general  who  signed  the 
requisition,  which  is  the  only  official  act  proved,  aside  from  the  memo- 
randum on  the  protocol,  never  saw  either  the  master  or  the  men,  the 
vice-consul  acting  for  him  in  everything,  except  signing  the  requisition. 
I  have  also  spoken  of  the  consul  as  the  consul  of  Prussia,  and  have 
considered  him  to  be  the  official  referred  to  in  the  treaty  with  Prussia. 

The  point  has  been  taken  that  the  proofs  show  Dr.  Roesing  to  be 
consul  general  of  the  North  German  Union ;  that  there  are  now  no 
consuls  of  Prussia,  nor  any  similar  treaty  with  the  North  German 
Union.  But  it  appears  from  the  law,  proved,  that  the  consul  of  the 
North  German  Union  is  the  consul  of  each  power  comprehended 
in  the  Union,  which  is  a  confederation  rather  than  a  Union.  Besides, 
the  executive  department  recognizes  Dr.  Roesing  as  the  consul  of 
Prussia,  by  virtue  of  his  appointment  as  consul  general  of  the  North 
German  Union,  and  the  courts  are  bound  by  the  action  of  the  executive 
in  such  a  matter,  the  question  being  political,  and  not  judicial. 

There  remains  to  allude  to  the  phase  of  the  case  which  is  presented 
by  the  fact  that  the  libel  is  filed  by  Newman,  the  mate,  to  recover 
his  own  wages,  and  also  the  wages  of  the  other  men,  as  the  assignee 
of  their  demands.  So  far  I  have  treated  the  case  as  if  all  the  men 
were  parties  libellant. 


74  DECISIONS  OF  FEDERAL  COURTS 

The  evidence  shows  the  execution  of  a  formal  assignment  to  the 
mate  of  the  claims  of  the  other  men,  but  it  also  appears  that  the  assign- 
ment was  without  consideration,  and  that  the  men  all  expect  to  receive 
whatever  may  be  recovered  as  their  wages.  This  mode  of  procedure 
to  save  multiplicity  of  suits  seems  to  have  been  adopted  in  ignorance 
of  the  rule  of  the  admiralty,  which  enables  several  seamen  to  join 
in  one  action;  and  the  mate,  upon  the  trial,  filed  a  consent  that  the 
other  men  be  now  joined  as  colibellants,  and  receive  in  their  own 
persons  whatever  might  be  awarded  for  their  claims.  Upon  such  a 
consent  and  such  facts,  I  deem  it  competent  to  permit  all  the  seamen  to 
join  in  the  action,  upon  petition  to  be  made  colibellants,  and,  on  show- 
ing the  cancellation  of  their  assignments  to  the  mate,  to  take  a  decree 
in  their  own  names  for  the  wages  found  due  them.  Two  of  them  are 
minors,  it  is  true,  but,  in  the  admiralty,  minors  who  are  mariners 
are  permitted  to  sue  for  their  wages  in  their  own  names.  All  seamen 
are  in  a  certain  sense  treated  as  minors  in  maritime  courts. 

In  accordance  with  these  views,  let  a  decree  be  entered  in  favor  of 
the  mate,  for  his  wages  earned  in  the  services  of  this  vessel,  and  still 
unpaid,  with  a  reference  to  ascertain  the  amount,  and  let  similar  decrees 
be  made  in  favor  of  the  seamen,  upon  the  filing  of  their  petition,  and 
showing  the  cancellation  of  their  assignments  to  the  mate. 


THE  ELWINE  KEEP  LIN2 

CONSTITUTIONAL  LAW — EFFECT  OF  EXPRESS  PROVISIONS  OF  FOREIGN  TREATY  UPON 
JURISDICTION  OF  LOCAL  COURTS 

Article  10  of  the  treaty  between  the  United  States  and  the  King  of  Prussia, 
of  May  1,  1828  (8  Stat.  378,  382),  provides,  that  the  consuls,  vice-consuls  and 
commercial  agents  of  each  party  "shall  have  the  right,  as  such,  to  sit  as  judges 
and  arbitrators,  in  such  differences  as  may  arise  between  the  captains  and  crews 
of  the  vessels  belonging  to  the  nation  whose  interests  are  committed  to  their 
charge,  without  the  interference  of 'the  local  authorities,"  subject  to  the  right 
of  the  contending  parties  "to  resort,  on  their  return,  to  the  judicial  authority 
of  their  country,"  and  to  the  right  of  the  consuls,  vice-consuls  or  commercial 
agents  to  require  the  assistance  of  the  local  authorities,  "to  cause  their  de- 
cisions to  be  carried  into  effect  or  supported."  The  crew  of  a  Prussian  vessel 
sued  her  in  rem,  in  admiralty,  in  the  District  Court,  to  recover  wages  alleged 

29  Blatchford,  438;  8  Federal  Cases,  588;  Circuit  Court,  Eastern  District  of 
New  York,  February  23,  1872 ;  reversing  the  Elwine  Kreplin,  ante,  p.  67. 


THE  ELWINE  KREPLIN  75 

to  be  due  to  them.  The  master  of  the  vessel  answered,  denying  the  debt,  in- 
voking the  protection  of  said  treaty,  denying  the  jurisdiction  of  the  court, 
and  averring  that  the  claim  for  wages  had  already  been  adjudicated  by  the 
Prussian  consul  at  New  York.  The  consul  also  protested  formally  to  the 
court  against  the  exercise  of  its  jurisdiction.  The  case  was  tried  in  the 
district  court,  and  it  appeared  that  the  consul  had  adjudicated  on  the  claim 
for  wages.  The  district  court  decreed  in  favor  of  the  libellants :  Held,  that  the 
district  court  had  no  jurisdiction  of  the  case. 

WOODRUFF,  Circuit  Judge.  By  the  tenth  article,  of  the  treaty 
made  by  the  United  States  with  the  King  of  Prussia,  on  the  1st  of 
May,  1828  (8  U.  S.  Stat.  L.,  vol.  8,  pp.  378,  382)  /  it  is  provided,  that 
"the  consuls,  vice-consuls,  and  commercial  agents," — which  each  of  the 
parties  to  the  treaty  is  declared  entitled  to  have  in  the  ports  of  the 
other — "shall  have  the  right,  as  such,  to  sit  as  judges  and  arbitra- 
tors, in  such  differences  as  may  arise  between  the  captains  and  crews 
of  the  vessels  belonging  to  the  nation  whose  interests  are  com- 
mitted to  their  charge,  without  the  interference  of  the  local  authori- 
ties. ...  It  is,  however,  understood,  that  this  species  of  judg- 
ment or  arbitration  shall  not  deprive  the  contending  parties  of  the 
right  they  have  to  resort,  on  their  return,  to  the  judicial  authority 
of  their  country."  To  this  general  rule  there  is  a  qualification :  "Un- 
less the  conduct  of  the  crews,  or  of  the  captain,  should  disturb 
the  order  or  tranquillity  of  the  country,  or  the  said  consuls,  vice-con- 
suls, or  commercial  agents  should  require  their  assistance"  (the  as- 
sistance of  the  local  authorities),  "to  cause  their  decisions  to  be  car- 
ried into  effect  or  supported."  This  treaty  is,  by  the  Constitution  of 
the  United  States,  the  law  of  the  land,  and  the  Courts  of  Justice  are 
bound  to  observe  it.  When  a  case  arises  which  is  within  this  provision 
of  the  treaty,  jurisdiction  thereof  belongs  to  the  consul,  vice-consul 
or  commercial  agent  of  the  nation  whose  interests  are  committed  to 
his  charge,  and  with  the  exercise  of  that  jurisdiction  the  local  tribunals 
are  not  at  liberty  to  interfere,  unless  such  consul,  vice-consul,  or  com- 
mercial agent  requires  their  assistance,  to  cause  their  decision  to  be 
carried  into  effect  or  supported. 

In  the  present  case,  the  mate  and  several  of  the  crew  of  the  barque 
Elwine  Kreplin  prosecuted  their  libels  against  the  vessel,  in  the  district 
court,  for  the  recovery  of  wages  alleged  to  be  due  to  them,  which 
the  master  of  the  vessel  denied  to  be  due,  upon  various  grounds' 

i-Ante,  pp.  50,  56. 


76  DECISIONS  OF  FEDERAL  COURTS 

and  the  vessel  was  attached  to  answer.  The  master  of  the 
barque,  intervening  for  the  interest  of  the  owner,  sets  up,  in 
his  answer,  various  grounds  of  defence  to  the  claim,  some  of  which 
arise  under  the  laws  of  Prussia;  and,  especially,  he  invokes  the  pro- 
tection of  the  treaty  above-mentioned,  and  denies  the  jurisdiction  of 
the  district  court,  alleging,  moreover,  that  the  matter  in  difference — 
the  claim  of  the  libellants  for  wages — has  already,  in  fact,  been  ad- 
judicated by  the  Prussian  consul  at  the  port  of  New  York.  Before 
the  cause  was  tried  in  the  District  Court,  the  consul  general  of  the 
North  German  Union  presented  to  the  District  Court  his  formal  protest 
against  the  exercise  of  jurisdiction  by  that  court  in  the  matter  in 
difference.  He  invoked  therein  the  treaty  above  referred  to,  and 
claimed  exclusive  jurisdiction  of  such  matter  in  difference;  and  he 
also  declared,  that,  before  the  filing  of  the  libel,  the  said  matter  had 
been  adjudicated  by  him,  and  insisted  that  his  adjudication  was  binding 
between  the  parties,  and  could  only  be  reviewed  by  the  judicial 
tribunals  of  Prussia. 

The  barque  is  a  Prussian  vessel,  the  mate  and  crew  are  Prussian 
seamen,  who  shipped  in  Prussia,  under  and  with  express  reference  to 
the  laws  of  Prussia,  referred  to  in  the  shipping  articles,  and  it  should 
be  assumed,  that  the  treaty  which  binds  this  nation  and  its  citizens 
and  seamen,  binds  also  Prussia  and  her  subjects  and  seamen.  The 
consul-general  of  the  North  German  Union  is  commissioned  by  the 
King  of  Prussia,  and,  by  certificate  of  the  Secretary  of  State  of  the 
United  States,  under  the  seal  of  that  department,  it  appears,  that  the 
executive  department  of  the  United  States  recognizes  the  consuls 
of  the  North  German  Union  as  consuls  of  each  one  of  the  sovereign 
states  composing  that  Union,  "the  same  as  if  they  had  been  commis- 
sioned by  each  one  of  such  states."  The  Kingdom  of  Prussia  is  one 
of  the  states  composing  the  North  German  Union.  The  treaty  does 
not  require  that  the  consuls,  vice-consuls,  etc.,  should  bear  any  specific 
name.  It  is  sufficient,  that  the  "interests"  of  Prussia  "are  committed 
to  their  charge,"  and  quite  sufficient,  that  the  Government  of  the 
United  States,  by  its  executive,  recognizes  the  consul  as  consul  of  the 
Kingdom  of  Prussia. 

The  discussion  of  the  case  at  the  hearing  on  the  appeal,  was,  on  the 
part  of  the  libellants,  very  largely  devoted  to  the  merits  of  the  claim 
for  wages,  upon  principles  applicable,  it  may  be,  to  the  subject,  if  no 
such  treaty  was  in  force,  and  under  decisions  of  our  courts  in  reference 


THE  ELWINE  KREPLIN  77 

to  the  rights  and  duties  of  seaman  and  master,  the  effect  of  the  mis- 
conduct of  either  upon  the  obligation  of  the  other,  for  the  purpose  of 
showing  that  the  treatment  of  the  libellants  by  the  master  exonerated 
them  from  their  duty  to  serve  according  to  the  terms  of  the  shipping 
articles,  and  also  from  all  others  of  its  stipulations,  even  from  such 
as  arise  from  the  laws  of  Prussia  forming  a  part  of  the  terms,  stipula- 
tions, and  conditions  which  enter  into  the  relation  of  the  crew  to  the 
master  and  owners,  and  to  the  vessel.  That  discussion  was  very  full, 
and  was  presented,  in  argument,  with  great  ability,  by  the  counsel  for 
the  libellants.  With  most  of  the  rules  of  the  law  invoked  by  the 
counsel,  when  considered  apart  from  and  independent  of  any  treaty 
stipulation,  the  claimants  have  no  contest;  and  they  are,  no  doubt, 
settled,  by  the  cases  cited.  But  the  prior  question  of  jurisdiction 
must  be  determined,  before  it  is  competent  even  to  enquire  into  the 
merits  of  the  libellants'  claim  to  recover  their  wages. 

In  the  first  instance,  it  would  seem  clear,  that  a  claim  of  the  crew 
of  a  Prussian  vessel  to  recover  wages  which  the  master  of  the  vessel 
either  denied  to  be  due,  or  refused  to  pay,  was,  par  eminence,  a  matter 
in  difference  between  the  captain  and  crew,  which,  by  the  very  terms 
of  the  treaty,  the  Prussian  consul  or  vice-consul  had  jurisdiction,  as 
judge  or  arbitrator,  to  determine,  "without  the  interference"  of  the 
courts  of  this  country;  and  such  jurisdiction,  when  it  exists,  is,  by 
such  terms  as  these,  exclusive.  It  is,  however,  claimed,  that  the 
present  cause  is  not  at  all  embraced  within  the  treaty,  for  the  reason, 
that  it  is  a  proceeding  in  rem,  to  enforce  a  maritime  lien  upon  the 
vessel  itself,  and  not  a  difference  between  the  captain  and  crew;  and, 
also,  because  the  Prussian  consul  has  no  power  to  conduct  and  carry 
into  effect  a  proceeding  in  rem  for  the  enforcement  of  such  a  lien. 

The  treaty  can  receive  no  such  narrow  and  technical  construction. 
The  master  is  the  representative,  in  this  port,  of  the  vessel,  and  of 
all  the  interests  concerned  therein.  He  is  plainly  so  regarded  in  the 
treaty.  The  matter  in  difference  in  this  cause  is  the  claim  for  wages. 
That  arises  between  the  crew  and  the  master,  either  as  master,  or  as 
the  representative  here  of  vessel  and  owners.  It  is  precisely  that  which 
is  in  litigation  in  this  case.  The  lien,  and  the  proceeding  in  rem 
against  the  vessel,  appertain  to  the  remedy,  and  only  to  the  remedy. 
The  very  first  step  in  this  cause  is  to  settle  the  matter  in  dispute.  If 
the  claim  be  established,  then,  as  incident  to  the  right  to  the  wages, 
the  lien  and  its  enforcement  against  the  vessel  follow.  The  District 


78  DECISIONS  OF  FEDERAL  COURTS 

Court  can  have  no  jurisdiction  of  the  lien,  nor  jurisdiction  to  enforce 
it,  if  it  has  no  jurisdiction  of  the  difference  or  dispute  touching  the 
claim  for  wages.  To  hold  that  the  jurisdiction  of  the  consul  is  con- 
fined to  cases  in  which  there  is  no  maritime  lien,  and  in  which  no 
libel  of  the  vessel  could,  apart  from  the  treaty,  be  maintained,  is  to  take 
from  the  treaty  very  much  of  its  substance.  The  existence  of  any  lien, 
and  of  any  right  to  charge  the  vessel,  is  in  difference  here.  To  say, 
that  the  treaty  gives  the  consul  jurisdiction  of  claims  against  the 
master  in  personam,,  and  does  not  include  a  claim  to  remove  the  vessel 
itself  from  his  custody,  as  the  owner  pro  hoc  vice,  or  as  the  representa- 
tive of  all  the  interests  therein,  that  the  voyage  may  be  broken  up, 
and  the  vessel  sold  for  the  wages  of  the  crew,  and  that  an  effort, 
by  judicial  proceeding,  to  do  this,  is  not  included  in  the  terms,  a 
difference  arising  between  captain  and  crew,  seems  to  me  to  destroy 
the  very  substance  of  the  stipulation,  and  defeat  its  obvious  purpose, 
to  confine  both  masters  and  crews  of  Prussia  to  the  rights  and  obliga- 
tions of  the  Prussian  laws,  and  compel  obedience  to  its  mandates. 
And,  be  it  observed,  the  treaty  gives  the  same  protection  to,  and 
requires  the  like  obedience  by,  the  masters  and  crews  of  vessels  of  the 
United  States.  It  does  not  add  to  the  legal  reasons  for  this  view,  but, 
if  a  vessel  of  the  United  States  were  sold  in  a  port  in  Prussia,  to  pay 
the  wages  of  its  crew,  alleged  by  the  master  not  to  be  payable,  and  in 
repudiation  of  any  right  of  the  United  States  consul  at  that  port  to  act 
as  judge  or  arbitrator  upon  that  claim,  it  would,  at  least,  stimulate 
our  quickness  of  apprehension  to  discover,  and  would  incline  us  to 
insist,  that  the  treaty  intended  to  protect  our  ship  owners  against  the 
application  of  foreign  laws,  and  the  decisions  of  foreign  courts,  to  our 
vessels  and  the  relations  of  the  master  and  crews  thereof. 

To  the  suggestion,  that  the  consul  has  no  power  to  enforce  the 
maritime  lien,  and  cause  the  vessel  to  be  sold,  to  satisfy  the  wages, 
if  he  should  find  that  wages  are  due  and  payable,  it  is  sufficient  to  say, 
that  the  treaty  has  been  deliberately  entered  into,  and  has  become  the 
law  for  both  nations.  Each  preferred  to  employ  its  own  officers.  The 
power  given  to  consuls  to  act  as  judge  or  arbitrator  is  not  made  final. 
The  parties  have  the  right  of  resort  to  the  tribunals  of  their  own  coun- 
try, without  being  concluded  by  the  decisions  of  the  consul.  This 
was  deemed  a  sufficient  protection,  and  to  afford,  for  the  time  being, 
a  sufficient  remedy  to  both  master  and  crew ;  and  it  is  not  for  this 
court  to  say,  that  the  remedy  here,  by  attachment  of  the  vessel,  will 


THE  ELWINE  K  REP  LIN  79 

be  more  efficient  and  useful,  and,  on  that  ground,  to  apply  it.  Besides, 
this  court  can  not  know  that  the  remedy  by  resort  to  the  vessel  is  not, 
if  it  exists,  so  regulated  in  Prussia,  that  it  was  intended  that  her  sea- 
men should  not  invoke  against  the  vessel  the  remedies  permitted  by  our 
laws,  under  the  mode  of  administration  and  rules  of  decision  by  which 
our  courts  are  governed.  And,  further,  under  the  expressed  exception, 
which  permits  resort  to  local  tribunals  by  consuls,  etc.,  who  may  re- 
quire their  assistance  to  cause  their  decisions  to  be  carried  into  effect 
or  supported,  it  is  plausible,  at  least,  to  say,  that,  if  the  consul  decide, 
on  a  difference  between  captain  and  crew,  that  wages  are  payable, 
the  power  of  the  court  to  attach  and  condemn  the  vessel  for  their  pay- 
ment may  be  invoked  to  support  and  give  effect  to  such  decision. 

Again,  it  is  said,  that,  in  this  case,  the  captain  and  crew  were  not 
confronted  before  the  counsel,  witnesses  were  not  examined,  no  ad- 
judication in  writing  was  made,  but  the  consul  only  orally  declared 
his  judgment  of  the  matter  in  difference,  after  hearing  the  statement 
of  the  master  and  the  statement  of  the  libellants,  and  then  declared 
that  he  had  nothing  further  to  do  therein.  The  proceeding  does  not, 
it  is  true,  conform  to  our  ideas  of  the  requisites  of  a  judicial  pro- 
ceeding; but,  are  the  courts  of  this  country  to  prescribe  to  the  Prus- 
sian consul  the  forms  and  modes  of  proceeding  which  he  must  adopt 
when  he  acts  as  a  judge  or  arbitrator  between  master  and  crew  under 
this  treaty  ?  Must  he  follow  the  practice,  and  be  governed  by  the  rules, 
governing  trials  and  arbitrations  under  our  laws?  Must  our  consuls 
in  Prussia  follow  the  rules  and  practice  of  the  courts  of  that  kingdom? 
If  so,  then  the  District  Court  here  was  sitting  as  a  court  of  error, 
to  review  the  judgment  or  award  of  the  Prussian  consul.  What  can  this 
court  say  are  the  formal  requisites  of  a  Prussian  arbitration?  It  is 
manifest,  by  the  reservation  of  the  right  to  resort  to  the  judicial  tribu- 
nals of  the  home  country,  without  being  concluded  by  the  decision  of 
the  consul,  that  the  proceeding  before  him  as  an  arbitrator  or  judge  was 
intended  to  be  summary,  and  its  conduct  left  very  much  in  his  discre- 
tion; and,  especially,  it  is  manifest,  that  the  nations  respectively  in- 
tended to  confide  in  their  consul,  and  temporarily  entrust  to  him  the 
adjustment  of  differences  between  officer  and  crew  of  their  vessel  in 
the  port  of  the  other,  and  it  was  not  intended  that  the  courts  of  such 
other  nation  should  sit  in  judgment  upon  the  form  or  regularity,  or 
the  justice,  of  the  acts  of  the  consul,  or  interfere  therewith  in  any 
manner.  It  was  deemed  safe  and  proper  to  leave  to  such  consuls  this 


80  DECISIONS  OF  FEDERAL  COURTS 

temporary  administration  of  the  interests  of  their  seamen  abroad, 
assured  that  they  would  act  with  fairness  and  integrity  therein,  but 
yet  giving  the  right  of  full  and  final  investigation  and  adjudication 
at  home,  where  home  laws,  home  remedies,  and  home  modes  of  in- 
vestigation could  be  resorted  to.  The  District  Court  here  not  only 
passed  upon  the  requisites  of  the  proceeding  as  judicial,  or  as  an 
arbitrament,  but  assumed  to  inquire  into  the  details  of  the  evidence, 
and  the  truth  of  the  declared  grounds  upon  which  the  vice-consul 
testified  that  he  acted,  and  which  he  says  were  before  him  in  the 
admissions  of  the  crew — thus,  in  effect,  reviewing  the  law  and  the 
facts  which  the  consul  made  the  basis  of  his  decision. 

It  is  claimed,  that  the  consul  did  not  act  as  judge  or  arbitrator  to 
determine  this  case,  and  that,  he  not  having  taken  jurisdiction,  a  pro- 
ceeding in  our  courts  is  no  interference  in  disregard  of  the  treaty.  It 
is  by  no  means  clear,  that  the  attachment  of  the  vessel,  on  the  libel  of 
the  crew,  is  not,  in  itself,  such  an  interference  as  precludes  the  action 
of  the  consul.  But  in  this  case,  the  argument  disregards  the  clearly 
established  fact,  that  the  consul  or  his  vice-consul  (who  is,  in  terms, 
included  in  the  treaty,  and  whose  acts  in  the  matter  the  consul  recog- 
nizes), did  hear  the  parties  respectively.  On  the  statement  of  the 
case  by  the  crew  (who,  whichsoever  of  them  was  the  first  speaker, 
had  the  opportunity  to  tell  their  story),  he  pronounced  against  them. 
On  their  own  story,  he  decided  that  they  had  forfeited  their  wages, 
by  the  Prussian  law,  applied  to  their  contract  of  shipment ;  and,  after- 
wards, when  this  suit  was  commenced,  he  formally  represents  to  the 
court,  that  he  had  already  adjudicated  the  matter  in  difference,  and 
claimed  that  his  jurisdiction  for  that  purpose  is  exclusive  of  the  courts 
of  this  country.  It  was  after  such  declaration  of  his  decision  to  the 
crew,  that  he,  knowing  that  the  vessel  was  laid  up,  advised  them  to  see 
the  captain,  and,  by  civil  and  conciliatory  deportment,  induce  him  to 
waive  the  forfeiture  and  pay  the  wages  which  had  accrued.  In  the 
situation  in  which  the  vessel  and  her  master  then  were,  it  is  obvious, 
that,  if  the  men  had  forfeited  their  wages  (of  which  I  here  express 
no  opinion),  their  acts  had  wrought  no  great  harm,  the  captain  had  no 
present  need  of  the  services  of  so  many,  and  many  considerations 
might  properly  have  moved  him  to  pay  their  wages  and  let  them  go. 
The  advice  of  the  consul  indicated  that  he  thought  the  loss  of  their 
service  was  no  inconvenience  to  the  captain  and,  even  if  wrong  there- 
tofore, they  had  claims  to  his  consideration,  while  destitute  and  in  a 


THE  ELWINE  KREPLIN  81 

foreign  country,  which  might  and,  perhaps,  ought  to  induce  him  to 
pay  their  wages.  This  is  all  there  is  of  the  argument,  that  the  consul 
himself  regarded  the  crew  as  practically  discharged. 

I  do  not  propose  to  examine  the  merits  of  the  libellants'  claim  for 
wages.  That  they  were,  on  the  requisition  of  the  consul,  and  without 
sufficient  grounds  therefor,  held  in  prison  as  deserters,  is  most  prob- 
able. That  their  departure  from  the  vessel,  and  going  ashore  without 
leave,  and  against  the  will  of  the  master  (save  as  to  one,  who  had  his 
consent),  is  not  desertion  by  our  law,  unless  it  was  done  without  the 
intention  to  return,  is,  no  doubt,  true.  That  the  master  did  not,  in 
fact,  consent  to  the  discharge  of  any  of  them,  is,  I  think,  clear,  while 
I  think  it  in  the  highest  degree  probable,  that,  if  this  difficulty  had  not 
arisen,  he  would,  in  view  of  the  laying  up  of  the  vessel,  have  consented 
to  part  with  most  of  them. 

I  do  not  think  it  certain,  that  an  imprisonment,  on  the  requisition  of 
the  consul,  though  induced  by  a  statement  of  the  facts  by  the  captain, 
operated  to  discharge  the  seamen  from  their  articles,  even  though  the 
imprisonment  was  not  warranted  by  the  facts.  Jordan  v.  Williams 
[1  Curtis'  C.  R.  R.,  69,  83] .  Nor  is  it  certain  that,  under  this  treaty,  and 
the  act  of  March  2,  1829  (U.  S.  Stat.  L.,  vol.  4,  p.  359),  a  state  magis- 
trate can  have  no  jurisdiction  to  arrest  and  detain  a  seaman  charged  as  a 
deserter.  True,  the  laws  of  the  United  States  may  not  make  it  the  duty 
of  a  state  judge  to  act;  but  it  does  not  follow,  that,  if  he  is  included 
in  the  law,  his  acts  will  be  without  authority.  There  are  many  powers 
conferred  upon  state  magistrates  by  the  laws  of  the  United  States, 
which,  if  executed,  are  valid.  Whether  such  magistrate  is  bound  to 
accept  the  authority  and  act  upon  it,  is  another  question.  The  act  of 
1829,  in  determining  the  duty,  confers  the  power  on  "any  court,  judge, 
justice,  or  other  magistrate  having  competent  power,  to  issue  war- 
rants" to  arrest,  etc.  See  Pars.  Shipp.  &  Adm.  102;  Kentucky  v. 
Dennison,  24  How.  [65  U.  S.]  66,  107,  108.  It  is  apparent,  that  the 
requisition  was  given  to  the  master  to  be  delivered  to  the  justice  at 
Staten  Island,  who,  as  the  captain  informed  the  consul,  then  detained 
the  seamen;  and  if,  as  stated  by  counsel  (though  it  does  not  appear 
as  printed  in  the  copy  proofs  handed  to  me),  it  was  addressed  to  "any 
magistrate,"  etc.,  the  power  of  the  magistrate  is  not  clearly  wanting. 

But  all  these  and  other  questions  go  to  the  merits.  They  bear  on 
the  broad  question,  whether,  under  the  terms  of  the  shipping  articles, 
and  the  Prussian  rules  contained  in  the  navigation  book,  etc.,  the 


82  DECISIONS  OF  FEDERAL  COURTS 

seamen  had  a  right  to  their  wages.  The  effect  of  the  stipulation  not 
to  sue  in  a  foreign  country,  which  appears  to  be  one  of  those  rules, 
also,  and  what  amounts  to  a  discharge  from  the  contract,  actual  or 
constructive,  are  questions  on  the  merits ;  and  the  sympathy,  which  the 
condition  of  these  men,  penniless  in  a  foreign  land,  whether  with  or 
without  fault  on  their  part,  must  awaken  in  every  mind  susceptible  of 
human  emotion,  strongly  inclines  to  a  condemnation  of  the  conduct 
of  the  master  in  this  matter. 

But  I  am  constrained  to  the  conclusion,  that  the  treaty  required 
that  this  matter  in  difference  should  have  been  left  where,  I  think, 
the  treaty  with  Prussia  leaves  it — in  the  hands,  and  subject  to  the 
determination,  of  their  own  public  officer.  The  necessary  result  is  the 
dismissal  of  the  libels. 


EX  PARTE  NEWMAN1 

Certain  Prussian  sailors  libelled  a  Prussian  vessel  in  New  York  in  admiralty 
for  wages,  less  in  amount  than  $2,000.  The  master  set  up  a  provision  in 
a  treaty  of  the  United  States  with  Prussia,  by  which  it  was  stipulated  that 
the  consuls  of  the  respective  countries  should  sit  as  judges  in  "differences 
between  the  crews  and  captains  of  vessels"  belonging  to  their  respective 
countries;  and  the  consul  of  Prussia,  coming  into  the  District  Court,  pro- 
tested against  the  District  Court's  taking  jurisdiction.  The  District  Court, 
however,  did  take  jurisdiction,  and  decreed  $712  to  the  sailors.  On  appeal 
the  Circuit  Court  reversed  the  decree,  and  dismissed  the  libel  because  of 
the  consul's  exclusive  jurisdiction.  Held,  that  mandamus  would  not  lie  to 
the  Circuit  judge  to  compel  him  to  entertain  jurisdiction  of  the  cause  on 
appeal,  and  to  hear  and  decide  the  same  on  the  merits  thereof ;  and  that 
this  conclusion  of  this  court  was  not  to  be  altered  by  the  fact  that  owing 
to  the  sum  in  controversy  being  less  than  $2,000,  no  appeal  or  writ  of  error 
from  the  Circuit  Court  to  this  court  existed. 

PETITION  for  writ  of  mandamus  to  the  United  States  Circuit  judge 
for  the  Eastern  District  of  New  York;  the  case  being  thus: 

The  Constitution  ordains2  that  the  judicial  power  of  the  United 
States  shall  extend  "to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion." 


*14  Wallace,  152;  December  Term,  1871. 
2  Article  3,  §  2. 


EX  PARTE  NEWMAN  83 

The  tenth  article  of  the  treaty  of  the  United  States  with  the  King 
of  Prussia,  made  May  1st,  1828,1  contains  this  provision: 

The  consuls,  vice-consuls,  and  commercial  agents  shall  have 
the  right,  as  such,  to  sit  as  judges  and  arbitrators  in  such  differ- 
ences as  may  arise  between  the  captains  and  crews  of  the  vessels 
belonging  to  the  nation  whose  interests  are  committed  to  their 
charge,  without  the  interference  of  the  local  authorities,  unless 
the  conduct  of  the  crews  or  of  the  captain  should  disturb  the 
order  or  tranquillity  of  the  country,  or  the  said  consuls,  vice-con- 
suls, or  commercial  agents  should  require  their  assistance  to  cause 
their  decisions  to  be  carried  into  effect  or  supported.  It  is,  how- 
ever, understood,  that  this  species  of  judgment  or  arbitration  shall 
not  deprive  the  contending  parties  of  the  right  they  have  to  re- 
sort, on  their  return,  to  the  judicial  authority  of  their  country. 

"All  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,"  it  is  ordained  by  the  Constitution  of  the  United 
States,2  "shall  be  the  supreme  law  of  the  land." 

With  this  treaty  thus  in  force,  the  mate  and  several  of  the  crew,  all 
Prussians — who  had  shipped  in  Prussia  on  the  Prussian  bark  Ehvine 
Kreplin,  under  and  with  express  reference,  made  in  the  shipping  arti- 
cles, to  the  laws  of  Prussia — got  into  a  difficulty  at  New  York  with 
the  master  of  the  bark,  who  caused  several  of  them  to  be  arrested 
on  charges  of  mutiny  and  desertion.  They,  on  the  other  hand,  took 
the  case  before  the  Prussian  consul;  denying  all  fault  on  their  part, 
and  claiming  wages.  The  vice-consul  heard  the  case,  and  decided  that 
on  their  own  showing  they  had  forfeited  their  wages  by  the  Prussian 
law  applied  to  their  contract  of  shipment.  In  addition  to  this  he  issued 
a  requisition  addressed  to  any  marshal  or  magistrate  of  the  United 
States,  reciting  that  the  master  and  crew  had  been  guilty  of  deser- 
tion, and  requiring  such  marshal  or  magistrate  to  take  notice  of  their 
offence. 

The  mate  and  men  now  filed  a  libel  in  the  District  Court  at  New 
York  against  the  bark  for  the  recovery  of  wages  (less  than  $2,000), 
which  they  alleged  were  due  to  them;  and  the  bark  was  attached  to 
answer.  The  master  of  the  bark  intervening  for  the  interest  of  the 
owners  answered,  and  set  up  various  grounds  of  defense  to  the  claim, 
some  of  which  arose  under  the  laws  of  Prussia,  and  especially  he  in- 


1  U.  S.  Stat.  L.,  vol.  8,  p.  378  [ante,  p.  50]. 

2  Article  6. 


84  DECISIONS  OF  FEDERAL  COURTS 

voked  the  protection  of  the  clause  in  the  above  quoted  treaty  between 
his  country  and  this,  and  denied  the  jurisdiction  of  the  District  Court, 
alleging,  moreover,  that  the  matter  in  difference,  the  claim  of  the 
libellants  for  wages,  had  already  in  fact  been  adjudicated  by  the 
Prussian  consul  at  the  port  of  New  York. 

Before  the  cause  was  tried  in  the  District  Court,  the  consul  general 
of  the  North  German  Union  presented  to  that  court  his  formal  pro- 
test against  the  exercise  of  jurisdiction  by  that  court  in  the  matter  in 
difference.1  He  invoked  therein  the  same  clause  in  the  treaty,  and 
claimed  exclusive  jurisdiction  of  such  matters  in  difference;  and  de- 
clared also  that,  before  the  filing  of  the  libel  the  matter  had  been  adjudi- 
cated by  him,  and  insisted  that  his  adjudication  was  binding  between 
the  parties,  and  could  only  be  reviewed  by  the  judicial  tribunals  of 
Prussia. 

The  District  Court  proceeded  notwithstanding  to  hear  and  adjudge 
the  case;  placing  its  right  to  do  this,  on  the  ground  that  the  suit  be- 
fore it  was  a  proceeding  in  rem  to  enforce  a  maritime  lien  upon  the 
vessel  itself,  and  not  a  "difference  between  the  captain  and  crew;" 
and,  also,  because  the  Prussian  consul  had  no  power  to  conduct  and 
carry  into  effect  a  proceeding  in  rem  for  the  enforcement  of  such  a 
lien,  and  had  not  in  fact  passed  at  all  and  could  not  pass  upon  any 
such  case.  Accordingly  after  a  careful  examination  of  the  facts,  that 
court  decreed  in  favor  of  the  libellants  $712.  The  case  then  came 
by  appeal  to  the  Circuit  Court.  This  latter  court  considered  that  the 
District  Court  had  given  to  the  treaty  too  narrow  and  technical  a  con- 
struction. The  Circuit  Court  said: 

The  master  is  the  representative  in  this  port  of  the  vessel  and 
of  all  the  interests  concerned  therein.  He  is  plainly  so  regarded 
in  the  treaty.  The  matter  in  difference  in  this  cause  is  the  claim 
for  wages.  That  arises  between  the  crew  and  the  master,  either 
as  master  or  as  the  representative  here  of  vessel  and  owners. 
The  lien  and  the  proceeding  in  rem  against  the  vessel  appertain 
only  to  the  remedy.  The  very  first  step  in  this  cause  is  to  settle 
the  matter  in  dispute.  If  the  claim  be  established,  then,  as  in- 


1  The  consul-general  of  the  North  German  Union  was  commissioned  by  the 
King  of  Prussia,  Prussia  being  one  of  the  States  composing  the  North  German 
Union ;  and  by  certificate  of  the  Secretary  of  State  of  the  United  States,  under 
the  seal  of  that  department,  it  appeared  that  the  Executive  Department  of  the 
United  States  recognizes  the  consuls  of  the  North  German  Union  as  consuls 
of  each  one  of  the  sovereign  States  composing  that  Union,  "the  same  as  if 
they  had  been  commissioned  by  each  one  of  such  States." 


EX  PARTE  NEWMAN  85 

cident  to  the  right  to  the  wages,  the  lien  and  its  enforcements 
against  the  vessel  follow.  The  District  Court  can  have  no  juris- 
diction of  the  lien,  nor  jurisdiction  to  enforce  it  if  it  has  no  juris- 
diction of  the  difference  or  dispute  touching  the  claim  for  wages. 
To  hold  that  the  jurisdiction  of  the  consul  is  confined  to  cases  in 
which  there  is  no  maritime  lien,  and  in  which  no  libel  of  the 
vessel  could,  apart  from  the  treaty,  be  maintained,  is  to  take  from 
the  treaty  much  of  its  substance. 

The  Grcuit  Court  adverted  to  and  relied  on  the  fact,  that  the  Prus- 
sian consul  had  moreover  actually  heard  the  mate  and  sailors,  and 
pronounced  against  them. 

The  Circuit  Court  accordingly,  while  it  expressed  on  a  general  view 
of  the  merits  its  sympathy  with  the  sailors,  and  a  strong  inclination 
to  condemn  the  conduct  of  the  master  in  the  matter,  yet  was  "con- 
strained to  the  conclusion  that  the  treaty  required  that  the  matter  in 
difference  should  have  been  left  where  the  treaty  with  Prussia  leaves 
it,  viz.,  in  the  hands  and  subject  to  the  determination  of  their  own 
public  officer."  The  result  was  the  dismissal  of  the  libels  by  the 
Circuit  Court  for  want  of  jurisdiction. 

Thereupon  Newman  and  the  others,  by  their  counsel,  Messrs.  P. 
Phillips  and  D.  McMahon,  filed  a  petition  in  this  court  for  a  writ  of 
mandamus  to  the  Circuit  judge,  commanding  him  "to  entertain  juris- 
diction of  the  said  cause  on  appeal,  and  to  hear  and  decide  the  same 
on  the  merits  thereof.''  The  judge  returned  that  the  Circuit  Court 
had  entertained  the  appeal,  and  had  heard  counsel  on  all  the  ques- 
tions raised  in  the  case,  and  had  decided  it;  and  that  the  said  court 
had  decided  that  the  matter  in  controversy  was  within  the  jurisdiction 
of  the  consul  under  the  treaty,  and  that  in  the  exercise  of  the  jurisdic- 
tion so  given  him,  he  had  decided  the  matter,  and  that  therefore  the 
court  had  dismissed  the  libel. 

The  question  now  was  whether  the  mandamus  should  issue. 

The  reader  will  of  course  remember  the  provision  in  the  13th  sec- 
tion of  the  Judiciary  act,  by  which  it  is  enacted : 

That  the  Supreme  Court  shall  have  power  to  issue  writs  of 
mandamus  in  cases  warranted  by  the  principles  and  usages  of 
law,  to  any  courts  appointed  or  persons  holding  office  under  the 
authority  of  the  United  States. 

And  also  the  provision  of  the  22d  section,  extended  by  an  act  of 
1803  to  appeals  in  admiralty,  by  which  it  is  enacted: 


86  DECISIONS  OF  FEDERAL  COURTS 

That  final  judgments  and  decrees  in  civil  actions  .  .  .  in  a 
Circuit  Court  .  .  .  removed  there  by  appeal  from  a  District 
Court,  where  the  matter  in  dispute  exceeds  the  sum  or  value  of 
$2,000,  exclusive  of  costs,  may  be  reexamined  and  reversed  or 
affirmed  in  the  Supreme  Court. 


Mr.  Justice  CLIFFORD  delivered  the  opinion  of  the  court. 

Attempt  was  made  in  the  first  place  to  prosecute  the  suit  in  the 
name  of  the  mate  for  himself  and  as  assignee  of  the  crew,  but  the 
court  before  entering  the  decree  suggested  an  amendment,  and  the 
crew  were  admitted  as  colibellants,  which  will  render  it  unnecessary 
to  make  any  further  reference  to  that  feature  of  the  pleadings. 

Proceedings  in  rem  were  instituted  in  the  District  Court  against  the 
bark  Elwine  Kreplin,  by  the  mate,  fcr  himself  and  in  behalf  of  the 
crew  of  the  bark,  on  the  twenty-fourth  of  August,  1870,  in  a  case  of 
subtraction  of  wages  civil  and  maritime,  and  they  allege  in  the  libel,  as 
amended,  that  the  bark  is  a  Prussian  vessel,  and  that  they  are  Prussian 
subjects,  and  that  they  were  hired  by  the  master  and  legally  shipped 
on  board  the  bark  for  a  specified  term  of  service,  and  that  they  con- 
tinued well  and  truly  to  perform  the  duties  they  were  shipped  to  ful- 
fil, and  that  they  were  obedient  to  the  lawful  commands  of  the  mas- 
ter, until  they  were  discharged.  They  also  set  forth  the  date  when 
they  were  shipped,  the  length  of  time  they  had  served,  the  wages  they 
were  to  receive,  and  the  amount  due  and  unpaid  to  them  respectively 
for  their  services,  and  aver  that  the  owners  of  the  bark  refuse  to  pay 
the  amount. 

Process  was  issued  and  served  by  the  seizure  of  the  bark,  and  the 
master  appeared,  as  claimant,  and  filed  an  answer.  He  admits  that 
the  appellants  shipped  on  board  the  bark  at  the  place  and  in  the  capaci- 
ties and  for  the  wages  alleged  in  the  libel,  but  he  avers  that  they  signed 
the  shipping  articles  and  bound  themselves  by  the  rules,  regulations, 
and  directions  of  the  shipping  law  and  rules  of  navigation  of  the 
country  to  which  the  bark  belonged,  and  he  denies  that  they  well  and 
truly  performed  their  duties,  or  that  they  were  obedient  to  his  lawful 
commands.  On  the  contrary,  he  alleges  that  they,  on  the  day  they 
were  discharged,  were  guilty  of  gross  insubordination  and  mutinous 
conduct,  that  they  resisted  the  lawful  commands  of  the  master,  and 


EX  PARTE  NEWMAN  87 

refused  to  obey  the  same,  and  interfered  with  him  in  the  performance 
of  his  duty,  and  with  force  and  threats  prevented  him  from  perform- 
ing the  same,  and  thereafter,  on  the  same  day,  deserted  from  the 
vessel. 

Apart  from  the  merits  he  also  set  up  the  following  defenses : 

1.  That  the  court  had  no  jurisdiction  of  the  matter  contained  in  the 
libel,  because  the  bark  was  a  Prussian  vessel,  owned  by  Prussian  citi- 
zens, and  because  the  libellants  were  Prussian  subjects  belonging  to 
the  crew  of  the  vessel,  and  were  also  citizens  of  that  kingdom. 

Support  to  that  defense  is  derived  from  the  tenth  article  of  our 
treaty  with  that  Government,  which  provides  that  consuls,  vice-con- 
suls, and  commercial  agents  of  the  respective  countries,  in  the  ports 
of  the  other,  shall  have  the  right,  as  such,  to  sit  as  judges  and  arbitra- 
tors in  such  differences  as  may  arise  between  the  captains  and  crews 
of  the  vessels  belonging  to  the  nation  whose  interests  are  committed 
to  their  charge,  without  the  interference  of  the  local  authorities,  un- 
less the  conduct  of  the  crews,  or  of  the  captain,  should  disturb  the 
order  or  tranquillity  of  the  country,  or  the  consuls,  vice-consuls,  or 
commercial  agents  should  require  their  assistance  to  cause  their  de- 
cisions to  be  carried  into  effect.1 

He  set  up  that  provision  of  the  treaty,  and  prayed  that  he  might 
have  the  same  advantage  of  it  as  if  the  same  was  separately  and  for- 
mally pleaded  to  the  libel. 

2.  That  the  libellants  in  signing  the  shipping  articles  bound  them- 
selves, under  the  penalty  of  a  forfeiture  of  wages,  not  to-  sue  or  bring 
any  action  for  any  cause,  against  the  vessel,  or  the  master,  or  owners 
thereof,  in  any  court  or  tribunal  except  in  those  of  Prussia. 

3.  That  the  consul  general  of  the  North  German  Union,  resident  in 
the  city  of  New  York,  which  Government  included  Prussia  and  other 
sovereignties,  heard  and  examined  the  questions  of  difference  between 
the  libellants  and  the  claimant  and  adjudicated  the  same ;  that  the  libel- 
lants appeared  before  the  court  on  the  occasion  and  presented  their 
claim  to  be  discharged  and  their  claim  for  wages,  and  that  the  consul, 
in  his  character  as  such,  heard  and  examined  their  said  claims  and  ad- 
judged that  the  libelJants  should  return  to  the  vessel,  and  that  no 
wages  were  due  them  or  would  be  due  them  until  they  complied  with 
the  contract  of  shipment. 


1  U.  S.  Stat.  L.,  vol.  8,  p.  382  [ante,  p.  56]. 


88  DECISIONS  OF  FEDERAL  COURTS 

Testimony  was  taken  in  the  District  Court,  and  the  District  Court 
entered  a  decree  in  favor  of  the  libellants  for  the  amount  due  them 
for  their  wages,  and  referred  the  cause  to  a  commissioner  to  ascertain 
and  report  the  amount.  Subsequently  he  reported  that  the  amount  due 
to  the  libellants  was  seven  hundred  and  forty-three  dollars  and  forty- 
one  cents.  Exceptions  were  filed  by  the  claimant,  and  the  District 
Court  upon  further  hearing  reduced  the  amount  to  seven  hundred  and 
twelve  dollars  and  thirty-two  cents,  and  entered  a  final  decree  for 
that  amount,  with  costs  of  suit.  Thereupon  the  claimant  appealed  to 
the  Circuit  Court,  and  the  record  shows  that  the  appeal  was  perfected, 
and  that  the  cause  was  duly  entered  in  that  court.1 

On  the  fifth  of  the  last  month  the  petition  under  consideration  was 
filed  in  this  court  in  behalf  of  the  appellees  in  that  suit,  in  which  they 
represented  that  the  cause  appealed  was  fully  argued  before  the  Cir- 
cuit Court  on  the  same  pleadings  and  proofs  as  those  exhibited  in  the 
District  Court,  and  that  the  Circuit  judge  reversed  the  decree  of  the 
District  Court  and  dismissed  the  libel  for  want  of  jurisdiction  in  the 
District  Court  to  hear  and  determine  the  controversy;  that  the  Circuit 
judge  declined  to  entertain  the  cause  or  to  consider  the  same  on  the 
merits,  and  that  no  final  decree  on  the  appeal  has  been  entered  in  the 
Circuit  Court  or  signed  by  the  Circuit  judge. 

His  refusal  to  entertain  jurisdiction  and  to  hear  and  decide  the 
merits  of  the  case  was  placed,  as  they  allege,  upon  the  ground  that  the 
matter  in  difference,  under  the  tenth  article  of  the  treaty,  was  within 
the  exclusive  cognizance  of  the  consul,  vice-consul,  or  commercial 
agent  therein  described,  and  in  consequence  thereof  that  the  District 
Court  was  without  any  jurisdiction,  which  they  contend  is  an  error 
for  the  following  reasons : 

(1.)  Because  the  treaty  stipulation,  if  so  construed,  is  unconstitu- 
tional and  void. 

(2.)  Because  that  article  of  the  treaty  applies  only  to  disputes  be- 
tween the  masters  and  crews  of  vessels,  and  has  no  reference  to  suits 
in  rem  against  the  vessel. 

(3.)  Because  the  record  in  this  case  shows  that  the  Prussian  au- 
thorities refused  to  entertain  jurisdiction  of  the  controversy. 

(4.)  Because  the  treaty  is  with  Prussia,  and  it  appears  that  her 
Government  has  no  consul,  vice-consul,  or  commercial  agent  at  that 
port. 

1  Ante,  p.  74. 


EX  PARTE  NEWMAN  89 

(5.)  Because  that  the  consul  who  acted  in  the  case  requested  the 
District  Court  to  take  jurisdiction  of  the  matter  in  difference. 

Hearing  was  had  on  the  day  the  petition  was  presented,  and  this 
court  granted  a  rule  requiring  the  Circuit  judge  to  show  cause  on  the 
day  therein  named  why  a  peremptory  writ  of  mandamus  should  not 
issue  to  him  directing  him  to  hear  the  appeal  of  the  petitioners  and 
decide  the  same  on  the  merits.  Due  service  of  that  rule  was  made,  and 
the  case  now  comes  before  the  court  upon  the  return  of  the  judge  to 
that  rule.  He  returns,  among  other  things  not  necessary  to  be  repro- 
duced, as  follows :  That  the  cause  of  the  libellants  proceeded  to  a  de- 
cree in  their  favor  in  the  District  Court ;  that  an  appeal  from  that  de- 
cree was  taken  in  due  form  to  the  Circuit  Court  for  that  district;  that 
the  Circuit  Court  did  not  refuse  to  entertain  the  appeal  nor  did  the 
Circuit  Court  refuse  to  decide  the  case  on  the  appeal  nor  hold  or  de- 
cide that  the  Circuit  Court  had  no  jurisdiction  to  hear  or  decide  the 
same,  as  required  by  the  proofs  or  by  the  law.  On  the  contrary,  the 
Circuit  Court  did  entertain  the  appeal,  did  hear  the  counsel  of  the 
parties  fully  on  all  the  questions  raised  in  the  case,  and  did  decide 
the  same.  But  in  making  such  decision  the  said  court  did  hold  and 
decide  that  the  matter  in  controversy  was  within  the  jurisdiction  of 
the  consul,  under  the  treaty,  and  that  the  consul,  in  the  exercise  of  that 
jurisdiction,  after  hearing  the  parties,  had  decided  the  matter.  Pur- 
suant to  those  views  the  Circuit  Court,  as  the  return  shows,  did  there- 
upon direct  that  the  decree  of  the  District  Court  be  reversed,  and  that 
the  libel  of  the  petitioners  be  dismissed. 

Power  to  issue  writs  of  mandamus  to  any  courts  appointed  under 
the  authority  of  the  United  States  was  given  to  this  court  by  the  thir- 
teenth section  of  the  Judiciary  Act,  in  cases  warranted  by  the  princi- 
ples and  usages  of  law.1  When  passed,  the  section  also  empowered 
the  court  to  issue  such  writs,  subject  to  the  same  conditions,  to  per- 
sons holding  office  under  the  United  States,  but  this  court,  very  early, 
decided  that  the  latter  provision  was  unconstitutional  and  void,  as  it 
assumed  to  enlarge  the  original  jurisdiction  of  the  court,  which  is 
defined  by  the  Constitution.2 

Applications  for  a  mandamus  to  a  subordinate  court  are  warranted 
by  the  principles  and  usages  of  law  in  cases  where  the  subordinate 


1  U.  S.  Stat.  L.,  vol.  1,  p.  81. 

2  Marbury  v.  Madison,  1  Cranch,  175 ;  Ex  parte  Hoyt,  18  Peters,  290. 


90  DECISIONS  OF  FEDERAL  COURTS 

court,  having  jurisdiction  of  a  case,  refuses  to  hear  and  decide  the 
controversy,  or  where  such  a  court,  having  heard  the  cause,  refuses 
to  render  judgment  or  enter  a  decree  in  the  case,  but  the  principles  and 
usages  of  law  do  not  warrant  the  use  of  the  writ  to  reexamine  a  judg- 
ment or  decree  of  a  subordinate  court  in  any  case,  nor  will  the  writ  be 
issued  to  direct  what  judgment  or  decree  such  a  court  shall  render  in 
any  pending  case,  nor  will  the  writ  be  issued  in  any  case  if  the  party 
aggrieved  may  have  a  remedy  by  writ  of  error  or  appeal,  as  the  only 
office  of  the  writ  when  issued  to  a  subordinate  court  is  to  direct  the 
performance  of  a  ministerial  act  or  to  command  the  court  to  act  in  a 
case  where  the  court  has  jurisdiction  and  refuses  to  act,  but  the  super- 
visory court  will  never  prescribe  what  the  decision  of  the  subordinate 
court  shall  be,  nor  will  the  supervisory  court  interfere  in  any  way  to 
control  the  judgment  or  discretion  of  the  subordinate  court  in  dis- 
posing of  the  controversy.1  Where  a  rule  is  laid,  as  in  this  case,  on 
the  judge  of  a  subordinate  court,  he  is  ordered  to  show  cause  why  the 
peremptory  writ  of  mandamus  shall  not  issue  to  him,  commanding 
him  to  do  some  act  which  it  is  alleged  he  has  power  to  do,  and  which 
it  is  his  duty  to  do,  and  which  he  has  improperly  neglected  and  refused 
to  do,  as  required  by  law.  Due  service  of  the  rule  being  made  the 
judge  is  required  to  make  return  to  the  charge  contained  in  the  rule, 
which  he  may  do  by  denying  the  matters  charged  or  by  setting  up  new 
matter  as  an  answer  to  the  accusations  of  the  relator,  or  he  may  elect 
to  submit  a  motion  to  quash  the  rule  or  to  demur  to  the  accusative  al- 
legations. Matters  charged  in  the  rule  and  denied  by  the  respondent 
must  be  proved  by  the  relator,  and  matters  alleged  in  avoidance  of 
the  charge  made,  if  denied  by  the  relator,  must  be  proved  by  the 
respondent.2  Motions  to  quash  in  such  cases  are  addressed  to  the  dis- 
cretion of  the  court,  but  if  the  respondent  demurs  to  the  rule,  or  if  the 
relator  demurs  to  the  return  the  party  demurring  admits  everything 
in  the  rule  or  the  return,  as  the  case  may  be,  which  is  well-pleaded,  and 
if  the  relator  elects  to  proceed  to  hearing  on  the  return,  without  plead- 
ing to  the  same  in  any  way,  the  matters  alleged  in  the  return  must  be 
taken  to  be  true  to  the  same  extent  as  if  the  relator  had  demurred  to 


1  Insurance  Co.  v.  Wilson,  8  Peters,  302 ;  United  States  v.  Peters,  5  Church, 
135;   Ex   parte   Bradstreet,   7    Peters,   648;   Ex   parte   Many,   14  Howard,   24; 
United  States  v.  Lawrence,  3  Dallas.  42 :  Commissioner  v.  IVhitely,  4  Wallace, 
522;  Insurance  Co.  v.  Adams,  9  Peters,  602. 

2  Angell  &  Ames  on  Corporations,  9th  ed.  Sec.  727 ;  Cagger  v.  Supervisors,  2 
Abbott's  Practice,  N.  S.  78. 


EX  PARTE  NEWMAN  91 

the  return.1  Subordinate  judicial  tribunals,  when  the  writ  is  addressed 
to  them,  are  usually  required  to  exercise  some  judicial  function  which 
it  is  alleged  they  have  improperly  neglected  or  refused  to  exercise, 
or  to  render  judgment  in  some  case  when  otherwise  there  would  be  a 
failure  of  justice  from  a  delay  or  refusal  to  act,  and  the  return  must 
either  deny  the  facts  stated  in  the  rule  or  alternative  writ  on  which 
the  claim  of  the  relator  is  founded,  or  must  state  other  facts  sufficient 
in  law  to  defeat  the  claim  of  the  relator,  and  no  doubt  is  entertained 
that  both  of  those  defenses  may  be  set  up  in  the  same  return,  as  in 
the  case  before  the  court.2  Several  defenses  may  be  set  up  in  the 
same  return,  and  if  any  one  of  them  be  sufficient  the  return  will  be 
upheld.3 

Evidently  the  District  judge  was  inclined  to  adopt  the  proposition, 
advanced  by  the  libellants,  that  the  suit  for  wages,  as  it  was  prosecuted 
by  a  libel  in  rem,  was  not  within  the  treaty  stipulation,  nor  a  contro- 
versy within  the  jurisdiction  of  the  consul,  but  he  did  not  place  his 
decision  upon  that  ground.  He  did,  however,  rule  that  the  treaty  did 
not  have  the  effect  to  change  the  jurisdiction  of  the  courts,  except 
to  require  them  to  decline  to  hear  matters  in  difference  between  the 
masters  and  crews  of  vessels  in  all  cases  where  the  consul  had  acted 
or  perhaps  was  ready  to  act  as  judge  or  arbitrator  in  respect  to  such 
differences.  Beyond  doubt  he  assumed  that  to  be  the  true  construction 
of  the  treaty,  and  having  settled  that  matter  he  proceeded  to  inquire 
whether  the  consul  had  adjudicated  the  pending  controversy,  or 
whether  the  evidence  showed  that  he  was  ready  to  do  so,  and  having 
answered  those  inquiries  in  the  negative  he  then  proceeded  to  examine 
the  pleadings  and  proofs,  and  came  to  the  conclusion  in  the  case  which 
is  expressed  in  the  decree  from  which  the  appeal  was  taken  to  the 
Circuit  Court. 

All  of  those  matters  were  again  fully  argued  in  the  Circuit  Court, 
and  the  Circuit  judge  decided  to  reverse  the  decree  of  the  District 
Court  upon  the  following  grounds:  (1.)  That  the  Prussian  consul, 


1  Tapping  on  Mandamus,  347;  Moses  on  Mandamus,  210;  Com.  Bank  v.  Com- 
missioners,  10  Wendell,  25;  Ryan   v.  Russel.   1   Abbott's   Practice,   N.   S.   230; 
Hanahan  v.  Board  of  Police,  26  New  York.  316;  Middleton  v.  Commissioners, 
37  Pennsylvania  State,  245;  3  Stephens's  Nisi  Prius,  2326;  6  Bacon's  Abridg- 
ment, ed.  1856,  447. 

2  Springfield  v.  Harnden,  10  Pickering,  59;  People  v.  Commissioners,  11  How- 
ard's Practice,  89;  People  v.  Champion,  16  Johnson,  61. 

3  Wright  v.  Fawcett,  4  Burrow,  2041 ;  Moses  on  Mandamus,  214. 


92  DECISIONS  OF  FEDERAL  COURTS 

under  the  treaty,  had  jurisdiction  of  the  subject-matter  involved  in  the 
suit  in  the  District  Court.  (2.)  That  the  jurisdiction  of  the  consul 
under  the  treaty  was  exclusive.  (3.)  That  the  proofs  showed  that 
the  consul  heard  and  adjudicated  the  matter  involved  in  the  suit 
appealed  to  the  Circuit  Court,  and  that  the  libellants  were  bound  by 
that  adjudication. 

Such  questions  were  undoubtedly  raised  in  the  pleadings,  and  it  is 
equally  certain  that  they  were  decided  by  the  District  Court  in  favor 
of  the  libellants.  Raised  as  they  were  by  the  pleadings,  it  can  not  be 
successfully  denied  that  the  same  questions  were  also  presented  in  the 
Circuit  Court,  and  in  view  of  the  return  it  must  be  conceded  that  they 
were  decided  in  the  latter  court  in  favor  of  the  respondent.  Support 
to  that  proposition  is  also  found  in  the  opinion  of  the  Circuit  judge, 
and  in  the  order  which  he  made  in  the  case.  Suffice  it,  however,  to 
say,  it  so  appears  in  the  return  before  the  court,  and  this  court  is  of 
the  opinion  that  the  return,  in  the  existing  state  of  the  proceedings, 
is  conclusive. 

Confessedly  the  petitioners  are  without  remedy  by  appeal  or  writ  of 
error,  as  the  sum  or  value  in  controversy  is  less  than  the  amount 
required  to  give  that  right,  and  it  is  insisted  that  they  ought  on  that 
account  to  have  the  remedy  sought  by  their  petition.  Mandamus  will 
not  lie,  it  is  true,  where  the  party  may  have  an  appeal  or  writ  of  error, 
but  it  is  equally  true  that  it  will  not  lie  in  many  other  cases  where 
the  party  is  without  remedy  by  appeal  or  writ  of  error.  Such  remedies 
are  not  given  save  in  patent  and  revenue  cases,  except  when  the  sum 
or  value  exceeds  two  thousand  dollars,  but  the  writ  of  mandamus  will 
not  lie  in  any  case  to  a  subordinate  court  unless  it  appears  that  the 
court  of  which  complaint  is  made  refused  to  act  in  respect  to  a  matter 
within  the  jurisdiction  of  the  court  and  where  it  is  the  duty  of  the 
court  to  act  in  the  premises. 

Admiralty  Courts,  it  is  said,  will  not  take  jurisdiction  in  such  a  case 
except  where  it  is  manifestly  necessary  to  do  so  to  prevent  a  failure 
of  justice,  but  the  better  opinion  is  that,  independent  of  treaty  stipula- 
tion, there  is  no  constitutional  or  legal  impediment  to  the  exercise 
of  jurisdiction  in  such  a  case.  Such  courts  may,  if  they  see  fit,  take 
jurisdiction  in  such  a  case,  but  they  will  not  do  so  as  a  general  rule 
without  the  consent  of  the  representative  of  the  country  to  which  the 
vessel  belongs,  where  it  is  practicable  that  the  representative  should  be 
consulted.  His  consent,  however,  is  not  a  condition  of  jurisdiction,  but 


UNITED  STATES  v.  DIEKELMAN  93 

is  regarded  as  a  material  fact  to  aid  the  court  in  determining  the 
question  of  discretion,  whether  jurisdiction  in  the  case  ought  or  ought 
not  to  be  exercised.1 

Viewed  in  the  light  of  the  return,  the  court  is  of  the  opinion  that 
the  rule  must  be  discharged  and  the 

PETITION  DENIED. 


UNITED  STATES  v.  DIEKELMAN2 

1.  Unless  treaty  stipulations  provide  otherwise,  a  merchant  vessel  of  one  country 

visiting  the  ports  of  another  for  the  purpose  of  trade,  is,  so  long  as  she 
remains,  subject  to  the  laws  which  govern  them. 

2.  Where,  in  time  of  war,  a  foreign  vessel,  availing  herself  of  a  proclamation 

of  the  President  of  May  12,  1862,  entered  the  port  of  New  Orleans,  the 
blockade  of  which  was  not  removed,  but  only  relaxed  in  the  interests  of 
commerce,  she  thereby  assented  to  the  conditions  imposed  by  such  procla- 
mation that  she  should  not  take  out  goods  contraband  of  war,  nor  depart 
until  cleared  by  the  collector  of  customs  according  to  law. 

3.  As  New  Orleans  was  then  governed  by  martial  law,  a  subject  of  a  foreign 

Power  entering  that  port  with  his  vessel  under  the  special  license  of  the 
proclamation  became  entitled  to  the  same  rights  and  privileges  accorded 
under  the  same  circumstances  to  loyal  citizens  of  the  United  States. 
Restrictions  placed  upon  them  operated  equally  upon  him. 

4.  Money,  silver-plate,  and  bullion,  when  destined   for  hostile  use  or  for  the 

purchase  of  hostile  supplies,  are  contraband  of  war.  In  this  case,  the 
determination  of  the  question  whether  such  articles,  part  of  the  outward- 
bound  cargo  of  the  vessel,  were  contraband,  devolved  upon  the  command- 
ing general  at  New  Orleans.  Believing  them  to  be  so,  he,  in  discharge  of 
his  duty,  ordered  them  to  be  removed  from  her,  and  her  clearance  to  be 
withheld  until  his  order  should  be  complied  with. 

5.  Where  the  detention  of  the  vessel  in  port  was  caused  by  her  resistance  to 

the  orders  of  the  properly  constituted  authorities  whom  she  was  bound  to 
obey,  she  preferring  such  detention  to  a  clearance  upon  the  conditions 
imposed, — Held,  that  her  owner,  a  subject  of  Prussia,  is  not  "entitled  to 
any  damages"  against  the  United  States,  under  the  law  of  nations  or  the 
treaty  with  that  power.  U.  S.  Stat.  L.,  vol.  8,  p.  384. 

1 2  Persons  on  Shipping,  224 ;  Lynch  v.  Crowder,  2  Law  Reporter,  N.  S.  355 ; 
Thompson  v.  Nanny,  Bee,  217 ;  The  Bee,  Ware,  332 ;  The  Infanta,  Abbott's  Ad- 
miralty, 263. 

2  92  U.  S.  Reports,  520 ;  October  term,  1875. 


94  DECISIONS  OF  FEDERAL  COURTS 

Appeal  from  the  Court  of  Claims. 

Mr.  Assistant  Attorney  General  Edwin  B.  Smith  for  the  appellant. 
Mr.  J.  D.  McPherson,  contra. 

MR.  CHIEF  JUSTICE  WAITE  delivered  the  opinion  of  the  court. 

This  suit  was  brought  in  the  Court  of  Claims  under  the  authority 
of  a  joint  resolution  of  both  Houses  of  Congress,  passed  May  4,  1870, 
as  follows : — 

That  the  claim  of  E.  Diekelman,  a  subject  of  the  King  of  Prus- 
sia, for  damages  for  an  alleged  detention  of  the  ship  Essex  by 
the  military  authorities  of  the  United  States  at  New  Orleans,  in 
the  month  of  September,  1862,  be  and  is  hereby  referred  to  the 
Court  of  Claims  for  its  decision  in  accordance  with  law,  and  to 
award  such  damages  as  may  be  just  in  the  premises,  if  he  may 
be  found  to  be  entitled  to  any  damages. 

Before  this  resolution  was  passed,  the  matter  of  the  claim  had  been 
the  subject  of  diplomatic  correspondence  between  the  Governments  of 
the  United  States  and  Prussia. 

The  following  article,  originally  adopted  in  the  treaty  of  peace  be- 
tween the  United  States  and  Prussia,  concluded  July  11,  1799  (U.  S. 
Stat.  L.,  vol.  8,  p.  168), l  and  revived  by  the  treaty  concluded  May  1, 
1828  (U.  S.  Stat.  L.,  vol.  8,  p.  384) ,2  was  in  force  when  the  acts  com- 
plained of  occurred,  to  wit: — 

Art.  13.  And  in  the  same  case,  if  one  of  the  contracting 
parties,  being  engaged  in  war  with  any  other  Power,  to  prevent 
all  the  difficulties  and  misunderstandings  that  usually  arise  re- 
specting merchandise  of  contraband,  such  as  arms,  ammunition 
and  military  stores  of  every  kind,  no  such  articles  carried  in  the 
vessels,  or  by  the  subjects  or  citizens  of  either  party,  to*  the  en- 
emies of  the  other,  shall  be  deemed  contraband  so  as  to  induce 
confiscation  or  condemnation,  and  a  loss  of  property  to  individ- 
uals. Nevertheless,  it  shall  be  lawful  to  stop  such  vessels  and 
articles,  and  to  detain  them  for  such  length  of  time  as  the  cap- 
tors may  think  necessary  to  prevent  the  inconvenience  or  damage 
that  might  ensue  from  their  proceeding;  paying,  however,  a  rea- 
sonable compensation  for  the  loss  such  arrest  shall  occasion  to 
the  proprietors ;  and  it  shall  further  be  allowed  to  use  in  the  ser- 
vice of  the  captors  the  whole  or  any  part  of  the  military  stores 


1  Ante,  p.  35. 

2  Ante,  p.  59. 


UNITED  STATES  v.  DIEKELMAN  95 

so  detained,  paying  the  owners  the  full  value  of  the  same,  to  be 
ascertained  by  the  current  price  at  the  place  of  its  destination. 
But  in  the  case  supposed  of  a  vessel  stopped  for  articles  of  con- 
traband, if  the  master  of  the  vessel  stopped  will  deliver  out  the 
goods  supposed  to  be  of  contraband  nature,  he  shall  be  admitted 
to  do  it,  and  the  vessel  shall  not,  in  that  case,  be  carried  into  any 
port,  nor  further  detained,  but  shall  be  allowed  to  proceed  on 
her  voyage. 

When  the  Essex  visited  New  Orleans,  the  United  States  were 
engaged  in  the  war  of  the  rebellion.  The  port  of  that  city  was,  at 
the  very  commencement  of  the  war,  placed  under  blockade,  and 
closed  against  trade  and  commercial  intercourse;  but,  on  the  12th  of 
May,  1862,  the  President,  having  become  satisfied  that  the  blockade 
might  "be  safely  relaxed  with  advantage  to  the  interests  of  com- 
merce," issued  his  proclamation,  to  the  effect  that  from  and  after 
June  1  "commercial  intercourse,  .  .  .  except  as  to  persons, 
things,  and  information  contraband  of  war,"  might  "be  carried  on 
subject  to  the  laws  of  the  United  States,  and  to  the  limitations,  and  in 
pursuance  of  the  regulations  .  .  .  prescribed  by  the  Secretary 
cf  the  Treasury,"  and  appended  to  the  proclamation.  These  regula- 
tions, so  far  as  they  are  applicable  to  the  present  case,  are  as  follows : 

1.  To  vessels  clearing  from  foreign  ports  and  destined  to  .  .  . 
New  Orleans,  .  .  .  licenses  will  be  granted  by  consuls  of 
the  United  States  upon  satisfactory  evidence  that  the  vessels  so 
licensed  will  convey  no  persons,  property,  or  information  contra- 
band of  war  either  to  or  from  the  said  ports;  which  licenses  shall 
be  exhibited  to  the  collector  of  the  port  to  which  said  vessels 
may  be  respectively  bound,  immediately  on  arrival,  and,  if  re- 
quired, to  any  officer  in  charge  of  the  blockade;  and  on  leaving 
either  of  said  ports  every  vessel  will  be  required  to  have  a  clear- 
ance from  the  collector  of  the  customs  according  to  law,  show- 
ing no  violation  of  the  conditions  of  the  license.  U.  S.  Stat.  L., 
vol.  12,  p.  1264. 

The  Essex  sailed  from  Liverpool  for  New  Orleans  June  19, 
1862,  and  arrived  August  24.  New  Orleans  was  then  in  possession 
of  the  military  forces  of  the  United  States,  with  General  Butler  in 
command.  The  city  was  practically  in  a  state  of  siege  by  land,  but 
open  by  sea,  and  was  under  martial  law. 

The  commanding  general  was  expressly  enjoined  by  the  Govern- 
ment of  the  United  States  to  take  measures  that  no  supplies  went  out 


96  DECISIONS  OF  FEDERAL  COURTS 

of  the  port  which  could  afford  aid  to  the  rebellion;  and,  pursuant  to 
this  injunction,  he  issued  orders  in  respect  to  .the  exportation  of 
money,  goods,  or  property,  on  account  of  any  person  known  to  be 
friendly  to  the  Confederacy,  and  directed  the  custom-house  officers 
to  inform  him  whenever  an  attempt  was  made  to  send  any  thing  out 
which  might  be  the  subject  of  investigation  in  that  behalf. 

In  the  early  part  of  September,  1862,  General  Butler,  being  still  in 
command,  was  informed  that  a  large  quantity  of  clothing  had  been 
bought  in  Belgium  on  account  of  the  Confederate  Government,  and 
was  lying  at  Matamoras  awaiting  delivery,  because  that  Government 
had  failed  to  get  the  means  they  expected  from  New  Orleans  to  pay 
for  it;  and  that  another  shipment,  amounting  to  a  half  million  more, 
was  delayed  in  Belgium  from  coming  forward,  because  of  the  non- 
payment of  the  first  shipment.  He  was  also  informed  that  it  was  ex- 
pected the  first  payment  would  go  forward  through  the  agency  of 
some  foreign  consuls;  and  this  information  afterwards  proved  to  be 
correct. 

He  was  also  informed  early  in  September  by  the  custom-house  offi- 
cers, that  large  quantities  of  silver-plate  and  bullion  were  being  shipped 
on  the  Essex,  then  loading  for  a  foreign  port,  by  persons,  one  of  whom 
had  declared  himself  an  enemy  of  the  United  States,  and  none  of 
whom  would  enroll  themselves  as  friends;  and  he  thereupon  gave 
directions  that  the  specified  articles  should  be  detained,  and  their 
exportation  not  allowed  until  further  orders. 

On  the  15th  September,  the  loading  of  the  vessel  having  been 
completed,  the  master  applied  to  the  collector  of  the  port  for  his 
clearance,  which  was  refused  in  consequence  of  the  orders  of  General 
Butler,  but  without  any  reasons  being  assigned  by  the  collector.  The 
next  day,  he  was  informed,  however,  that  his  ship  would  not  be 
cleared  unless  certain  specified  articles  which  she  had  on  board  were 
taken  out  and  landed.  Much  correspondence  ensued  between  Gen- 
eral Butler  and  the  Prussian  consul  at  New  Orleans  in  reference  to 
the  clearance,  in  which  it  was  distinctly  stated  by  General  Butler  that 
the  clearance  would  not  be  granted  until  the  specified  goods  were 
landed,  and  that  it  would  be  granted  as  soon  as  this  should  be  done. 
Almost  daily  interviews  took  place  between  the  master  of  the  vessel 
and  the  collector,  in  which  the  same  statements  were  made  by  the 
collector.  The  master  refused  to  land  the  cargo,  except  upon  the 
return  of  his  bills  of  lading.  Some  of  these  bills  were  returned,  and 


UNITED  STATES  v.  DIEKELMAN  97 

the  property  surrendered  to  the  shipper.  In  another  case,  the  shipper 
gave  an  order  upon  the  master  for  his  goods,  and  they  were  taken 
away  by  force.  At  a  very  early  stage  in  the  proceeding,  the  master 
and  the  Prussian  consul  were  informed  that  the  objection  to  the  ship- 
ment of  the  articles  complained  of  was  that  they  were  contraband. 

A  part  only  of  the  goods  having  been  taken  out  of  the  vessel,  a 
clearance  was  granted  her  on  the  6th  of  October,  and  she  was  per- 
mitted to  leave  the  port  and  commence  her  voyage. 

Upon  this  state  of  facts,  the  Court  of  Claims  gave  judgment  for 
Diekelman,  from  which  the  United  States  took  an  appeal. 

One  nation  treats  with  the  citizens  of  another  only  through  their 
Government.  A  sovereign  cannot  be  sued  in  his  own  courts  without 
his  consent.  His  own  dignity,  as  well  as  the  dignity  of  the  nation  he 
represents,  prevents  his  appearance  to  answer  a  suit  against  him  in 
the  courts  of  another  sovereignty,  except  in  performance  of  his  ob- 
ligations, by  treaty  or  otherwise,  voluntarily  assumed.  Hence,  a  citi- 
zen of  one  nation  wronged  by  the  conduct  of  another  nation,  must 
seek  redress  through  his  own  Government. 

His  sovereign  must  assume  the  responsibility  of  presenting  his 
claim,  or  it  need  not  be  considered.  If  this  responsibility  is  assumed, 
the  claim  may  be  prosecuted  as  one  nation  proceeds  against  another, 
not  by  suit  in  the  courts  as  of  right,  but  by  diplomacy,  or,  if  need  be, 
by  war.  It  rests  with  the  sovereign  against  whom  the  demand  is 
made  to  determine  for  himself  what  he  will  do  i»  respect  to  it.  He 
may  pay  or  reject  it;  he  may  submit  to  arbitration,  open  his  own 
courts  to  suit,  or  consent  to  be  tried  in  the  courts  of  another  nation. 
All  depends  upon  himself. 

In  this  case,  Diekelman,  claiming  to  have  been  injured  by  the 
alleged  wrongful  conduct  of  the  military  forces  of  the  United  States, 
made  his  claim  known  to  his  Government.  It  was  taken  into  consid- 
eration, and  became  the  subject  of  diplomatic  correspondence  be- 
tween the  two  nations.  Subsequently,  Congress,  by  joint  resolution, 
referred  the  matter  to  the  Court  of  Claims  "for  its  decision  according 
to  law."  The  cpurts  of  the  United  States  were  thus  opened  to  Die- 
kelman for  this  proceeding.  In  this  way  the  United  States  have 
submitted  to  the  Court  of  Claims,  and  through  that  court  upon  appeal 
to  us,  the  determination  of  the  question  of  their  legal  liability  under 
all  the  circumstances  of  this  case  for  the  payment  of  damages  to  a 
citizen  of  Prussia  upon  a  claim  originally  presented  by  his  sovereign 


98  DECISIONS  OF  FEDERAL  COURTS 

in  his  behalf.  This  requires  us,  as  we  think,  to  consider  the  rights  of 
the  claimant  under  the  treaty  between  the  two  Governments,  as  well 
as  under  the  general  law  of  nations.  For  all  the  purposes  of  its  de- 
cision, the  case  is  to  be  treated  as  one  in  which  the  Government  of 
Prussia  is  seeking  to  enforce  the  rights  of  one  of  its  citizens  against 
the  United  States  in  a  suit  at  law,  which  the  two  Governments  have 
agreed  might  be  instituted  for  that  purpose.  We  shall  proceed  upon 
that  hypothesis. 


2.  As  to  the  treaty. 

The  vessel  was  in  port  when  the  detention  occurred.  She  had  not 
broken  ground,  and  had  not  commenced  her  voyage.  She  came  into 
the  waters  of  the  United  States  while  an  impending  war  was  flagrant, 
under  an  agreement  not  to  depart  with  contraband  goods  on  board. 
The  question  is  not  whether  she  could  have  been  stopped  and  detained 
after  her  voyage  had  been  actually  commenced,  without  compensation 
for  the  loss,  but  whether  she  could  be  kept  from  entering  upon  the 
voyage  and  detained  by  the  United  States  within  their  own 'waters, 
held  by  force  against  a  powerful  rebellion,  until  she  had  complied 
with  regulations  adopted  as  a  means  of  safety,  and  to  the  enforce- 
ment of  which  she  had  assented,  in  order  to  get  there.  In  our  opin- 
ion, no  provision  of  the  treaties  in  force  between  the  two  Govern- 
ments interferes  with  the  right  of  the  United  States,  under  the  general 
law  of  nations,  to  withhold  a  custom-house  clearance  as  a  means  of 
enforcing  port  regulations. 

Art.  13  of  the  treaty  of  1828  contemplates  the  establishment  of 
blockades,  and  makes  special  provision  for  the  government  of  the 
respective  parties  in  case  they  exist.  The  vessels  of  one  nation  are 
bound  to  respect  the  blockades  of  the  other.  Clearly  the  United 
States  had  the  right  to  exclude  Prussian  vessels  in  common  with 
those  of  all  other  nations,  from  their  ports  altogether,  by  establish- 
ing and  maintaining  a  blockade  while  subduing  a  domestic  insurrec- 
tion. The  right  to  exclude  altogether  necessarily  carries  with  it  the 
right  of  admitting  through  an  existing  blockade  upon  conditions,  and 
of  enforcing  in  an  appropriate  manner  the  performance  of  the  con- 
ditions after  admission  has  been  obtained.  It  will  not  be  contended 
that  a  condition  which  prohibits  the  taking  out  of  contraband  goods 


UNITED  STATES  v.  DIEKELMAN  99 

is  unreasonable,  or  that  its  performance  may  not  be  enforced  by  re- 
fusing a  clearance  until  it  has  been  complied  with.  Neither,  in  the 
absence  of  treaty  stipulations  to  the  contrary,  can  it  be  considered 
unreasonable  to  require  goods  to  be  unloaded,  if  their  contraband 
character  is  discovered  after  they  have  gone  on  board.  In  the  exist- 
ing treaties  between  the  two  Governments  there  is  no  such  stipula- 
tions to  the  contrary.  In  the  treaty  of  1799,  Art.  6  is  as  follows : 

That  the  vessels  of  either  party,  loading  within  the  ports  or 
jurisdiction  of  the  other,  may  not  be  uselessly  harassed,  or  de- 
tained, it  is  agreed,  that  all  examinations  of  goods,  required  by  the 
laws,  shall  be  made  before  they  are  laden  on  board  the  vessel, 
and  that  there  shall  be  no  examination  after. 

While  other  articles  in  the  treaty  of  1799  were  revived  and  kept 
in  force  by  that  of  1828,  this  was  not.  The  conclusion  is  irresistible, 
that  the  high  contracting  parties  were  unwilling  to  continue  bound 
by  such  a  stipulation,  and,  therefore,  omitted  it  from  their  new  ar- 
rangement. It  would  seem  to  follow,  that,  under  the  existing  treaty, 
the  power  of  search  and  detention  for  improper  practices  continued, 
in  time  of  peace  even,  until  the  clearance  had  been  actually  per- 
fected and  the  vessel  had  entered  on  her  voyage.  If  this  be  the  rule 
in  peace,  how  much  more  important  is  it  in  war  for  the  prevention  of 
the  use  of  friendly  vessels  to  aid  the  enemy. 

Art.  13  of  the  treaty  of  1799,  revived  by  that  of  1828,  evidently 
has  reference  to  captures  and  detentions  after  a  voyage  has  com- 
menced, and  not  to  detentions  in  port,  to  enforce  port  regulations. 
The  vessel  must  be  "stopped"  in  her  voyage,  not  detained  in  port 
alone.  There  must  be  "captors;"  and  the  vessel  must  be  in  a  condi- 
tion to  be  "carried  into  port"  or  detained  from  "proceeding"  after 
she  has  been  "stopped,"  before  this  article  can  become  operative. 
Under  its  provisions  the  vessel  "stopped"  might  "deliver  out  the 
goods  supposed  to  be  contraband  of  war,"  and  avoid  further  "deten- 
tion." In  this  case  there  was  no  detention  upon  a  voyage,  but  a  re- 
fusal to  grant  a  clearance  from  the  port  that  the  voyage  might  be 
commenced.  The  vessel  was  required  to  "deliver  out  the  goods  sup- 
posed to  be  contraband"  before  she  could  move  out  of  the  port.  Her 
detention  was  not  under  the  authority  of  the  treaty,  but  in  conse- 
quence of  her  resistance  of  the  orders  of  the  properly  constituted  port 
authorities,  whom  she  was  bound  to  obey.  She  preferred  detention 


100  DECISIONS  OF  FEDERAL  COURTS 

in  port  to  a  clearance  on  the  conditions  imposed.  Clearly  her  case  is 
not  within  the  treaty.  The  United  States,  in  detaining,  used  the  right 
they  had  under  the  law  of  nations  and  their  contract  with  the  vessel, 
not  one  which,  to  use  the  language  of  the  majority  of  the  Court  of 
Claims,  they  held  under  the  treaty  "by  purchase"  at  a  stipulated 
price. 

As  we  view  the  case,  the  claimant  is  not  "entitled  to  any  damages" 
as  against  the  United  States,  either  under  the  treaty  with  Prussia  or 
by  the  general  law  of  nations. 

The  judgment  of  the  Court  of  Claims  is,  therefore,  reversed,  and 
the  cause  remanded  with  directions  to  dismiss  the  petition. 


NORTH  GERMAN  LLOYD  S.  S.  CO.  v.  HEDDEN,  COLLECTOR1 
SAME  v.  MAGONE,  COLLECTOR 

(Circuit  Court,  D.  New  Jersey.    May  21,  1890) 

1.  CUSTOMS  DUTIES — CONSTRUCTION  OF  LAWS— TONNAGE  TAX. 

Act  Cong.  June  26,  1884,  §  14,  which  levies  a  duty  of  3  cents  per  ton  on 
all  vessels  "from  any  foreign  port  or  place  in  North  America,  Central 
America,  the  West  India  Islands,  the  Bahama  Islands,  the  Bermuda  Islands, 
or  the  Sandwich  Islands,  or  Newfoundland,"  and  a  duty  of  6  cents  per  ton  on 
vessels  from  other  foreign  ports,  does  not  entitle  German  vessels  sailing 
from  European  ports  to  enter  our  ports  on  payment  of  a  duty  of  3  cents  per 
ton,  under  the  treaties  of  December  20,  1827,  and  May  1,  1828,  which  stipulate 
that  the  United  States  shall  not  grant  any  particular  favor  regarding  com- 
merce or  navigation  to  any  other  foreign  nation  which  shall  not  immediately 
become  common  to  Germany,  since  the  discrimination  contained  in  said  act 
is  merely  geographical,  and  the  3-cent  rate  applies  to  vessels  of  all  nations 
coming  from  the  privileged  ports. 

2.  TREATIES — EFFECT  OF  INCONSISTENT  ACT  OF  CONGRESS. 

Where  an  act  of  Congress  is  in  conflict  with  a  prior  treaty  the  act  must 
control,  since  it  is  of  equal  force  with  the  treaty  and  of  later  date. 

3.  CONSTITUTIONAL  LAW — COMMISSIONER  OF  NAVIGATION. 

Act  Cong.  July  5,  1884,  §  3,  which  makes  final  the  decision  of  the  com- 
misioner  of  navigation  on  all  questions  "relating  to  the  collection  of  tonnage 
tax,  and  to  the  refunding  of  such  tax,  when  collected  erroneously  or  il- 
legally," is  constitutional. 

1 43  Federal  Reporter,  17.    See  also  the  opinion  of  the  Attorney  General,  post, 
p.  141,  and  the  diplomatic  correspondence,  post,  p.  151. 


NORTH  GERMAN  LLOYD  S.  S.  CO.  v.  HEDDEN  101 

At  Law. 

Samuel  F.  Bigelow  and  Henry  C.  Nevitt,  for  plaintiff. 

Howard  W.  Hayes,  Asst.  U.  S.  Dist.  Atty.,  for  defendants. 

WALES,  J.  The  plaintiff,  a  duly  organized  corporation  under  the 
laws  of  the  Hanseatic  Republic  of  Bremen,  which  is  a  part  of  the 
German  empire,  is  the  owner  of  a  line  of  ocean  steamships,  plying 
regularly  between  the  ports  of  Bremen  and  New  York,  and  brings 
these  actions,  under  section  2931,  U.  S.  Rev.  Stat.,  to  recover  the 
amount  of  certain  tonnage  dues,  alleged  to  have  been  unlawfully  col- 
lected from  said  ships  during  the  period  extending  from  June  26, 
1884,  to  July  28,  1888,  and  while  the  defendants  were  successively 
collectors  of  customs  at  the  last  named  port.  The  vessels  cleared  from 
Bremen  for  New  York  via  Southampton,  England,  stopping  at  or 
near  the  latter  place  temporarily,  to  discharge  cargo  and  passengers, 
and  to  take  on  board  additional  cargo,  passengers,  and  mails.  The 
consignees  of  the  vessels  paid  the  dues,  in  every  instance,  under  pro- 
test, and  the  plaintiff  appealed  to  the  Secretary  of  the  Treasury,  and 
finally,  at  the  suggestion  of  the  latter  officer  and  with  the  concurrence 
of  the  Department  of  Justice,  brought  these  actions  to  determine  the 
authority  of  the  defendants.  The  right  of  the  plaintiff  to  recover 
depends  upon  the  following  statement  of  the  law  and  facts :  Prior  to 
the  act  of  Congress  of  June  26,  1884,  entitled  "An  act  to  remove  cer- 
tain burdens  on  the  American  merchant  marine  and  encourage  the 
American  foreign  carrying  trade,"  tonnage  tax  was  imposed  upon 
German  and  all  other  vessels  arriving  in  the  United  States  from  for- 
eign ports,  at  the  rate  of  30  cents  per  ton  per  annum,  and  up  to  July 
1st,  of  that  year,  it  had  been  collected  in  a  lump  sum  for  a  year  at  a 
time.  But  section  14  of  the  act  of  1884  changed  the  rate  and  mode  of 
collection  as  follows: 

That  in  lieu  of  the  tax  on  tonnage  of  thirty  cents  per  ton  per 
annum,  heretofore  imposed  by  law,  a  duty  of  three  cents  per  ton, 
not  to  exceed  in  the  aggregate  fifteen  cents  per  ton  in  any  one 
year,  is  hereby  imposed  at  each  entry  on  all  vessels  which  shall 
be  entered  in  any  port  of  the  United  States  from  any  foreign 
port  or  place  in  North  America,  Central  America,  the  West  India 
Islands,  the  Bahama  Islands,  the  Bermuda  Islands,  or  the  Sand- 
wich Islands,  or  Newfoundland ;  and  a  duty  of  six  cents  per  ton, 
not  to  exceed  thirty  cents  per  ton  annum,  is  hereby  imposed  at 
each  entry  upon  all  vessels  which  shall  be  entered  in  the  United 
States  from  any  other  foreign  ports.  U.  S.  Stat.  L.,  vol.  23,  p.  57. 


102  DECISIONS  OF  FEDERAL  COURTS 

This  section  was  amended  by  section  11  of  the  act  of  Congress  of 
June  19,  1886,  entitled  "An  act  to  abolish  certain  fees,"  etc.  U.  S. 
Stat.  L.,  vol  24,  p.  81.  The  amendment  consisted  in  adding  the  follow- 
ing words  to  those  just  quoted: 

Not,  however,  to  include  vessels  in  distress  or  not  engaged  in 
trade;  provided,  that  the  President  of  the  United  States  shall 
suspend  the  collection  of  so  much  of  the  duty  herein  imposed  on 
vessels  entered  from  any  foreign  port  as  may  be  in  excess  of  the 
tonnage  and  lighthouse  dues,  or  other  equivalent  tax  or  taxes, 
imposed  in  said  port  on  American  vessels,  by  the  Government  of 
the  foreign  country  in  which  such  port  is  situated,  and  shall, 
upon  the  passage  of  this  act,  and  from  time  to  time  thereafter  as 
often  as  it  may  become  necessary,  by  reason  of  changes  in  the 
laws  of  the  foreign  countries  above  mentioned,  indicate  by  procla- 
mation the  ports  to  which  such  suspension  shall  apply,  and  the  rate 
or  rates  of  tonnage  duty,  if  any,  to  be  collected  under  such  suspen- 
sion :  provided,  further,  that  such  proclamation  shall  exclude  from 
the  benefits  of  the  suspension  herein  authorized,  the  vessels  of  any 
foreign  country  in  whose  ports  the  fees  or  dues  of  any  kind  or 
nature  imposed  on  vessels  of  the  United  States,  or  the  import  or 
export  duties  on  their  cargoes,  are  in  excess  of  the  fees,  dues,  or 
duties  imposed  on  the  vessels  of  the  country  in  which  such  port 
is  situated,  or  on  the  cargoes  of  such  vessels ;  and  sections  4223 
and  4224  and  so  much  of  section  4219  of  the  U.  S.  Revised 
Statutes  as  conflict  with  this  section  are  hereby  repealed. 

Section  4219,  title  48,  chap.  3,  Rev.  Stats.,  referred  to  in  the  fore- 
going sub-proviso,  provides  that  "nothing  in  this  section  shall  be 
deemed  ...  to  impair  any  rights  .  .  .  under  the  law  and 
treaties  of  the  United  States  relative  to  the  duty  of  tonnage  vessels." 
Section  4227  of  the  same  title  and  chapter  is  in  these  words : 

Nothing  contained  in  this  title  shall  be  deemed  in  any  wise  to 
impair  any  rights  and  privileges  which  have  been  or  may  be  ac- 
quired by  any  foreign  nation  under  the  laws  and  treaties  of  the 
United  States,  relative  to  the  duty  on  tonnage  of  vessels,  or  any 
other  duty  on  vessels. 

By  Article  9  of  the  treaty  of  December  20,  1827,  between  the  United 
States  and  the  Hanseatic  Republics,  "the  contracting  parties  .  .  . 
engage  mutually  not  to  grant  any  particular  favor  to  other  nations, 
in  respect  of  commerce  and  navigation,  which  shall  not  immediately 
become  common  to  the  other  party."  Public  Treaties,  400.  Article  9 
of  the  Prussian- American  treaty  of  May  1,  1828,  (Public  Treaties, 


NORTH  GERMAN  LLOYD  S.  S.  CO.  v.  HEDDEN  103 

656,)  contains  a  like  stipulation.  These  treaties  have  been  held  by 
both  the  American  and  German  Governments  to  be  valid  for  all  Ger- 
many. On  the  26th  of  January,  1888,  the  President,  in  virtue  of  the 
authority  vested  in  him  by  section  11  of  the  act  of  June  19,  1886, 
issued  his  proclamation,  wherein,  after  reciting  that  he  had  received 
satisfactory  proof  that  no  tonnage  or  lighthouse  dues,  or  any  equi- 
valent tax  or  taxes  whatever,  are  imposed  upon  American  vessels 
entering  the  ports  of  the  German  Empire,  either  by  the  imperial  Gov- 
ernment or  by  the  Government  of  the  German  maritime  states,  and 
that  vessels  belonging  to  the  United  States  are  not  required,  in  German 
ports,  to  pay  any  fee  or  due  of  any  kind  or  nature,  or  any  import 
duty  higher  or  other  than  is  payable  by  German  vessels  or  their  car- 
goes, did  "declare  and  proclaim  that  from  and  after  the  date  ot  this  my 
proclamation  shall  be  suspended  the  collection  of  the  whole  of  the 
duty  of  six  cents  per  ton  .  .  .  upon  vessels  entered  in  the  ports 
of  the  United  States  from  any  of  the  ports  of  the  empire  of  Germany. 
.  .  .  and  the  suspension  hereby  declared  and  proclaimed  shall 
continue  so  long  as  the  reciprocal  exemption  of  vessels  belonging  to 
citizens  of  the  United  States  and  their  cargoes  shall  be  continued  in 
the  said  ports  of  the  empire  of  Germany,  and  no  longer."  The  com- 
missioner of  navigation,  in  his  circular  letter  No.  19,  dated  February 
1,  1888,  and  approved  by  the  Secretary  of  the  Treasury,  addressed  to 
the  collectors  of  customs  and  others,  decided  that  the  President's 
proclamation  does  not  apply  to  vessels  which  entered  before  the  date 
of  the  proclamation,  and  that  only  those  German  vessels  "arriving 
directly  from  the  ports  of  the  German  empire  may  be  admitted  under 
the  proclamation  without  the  payment  of  the  dues  therein  men- 
tioned." The  commissioner  of  navigation  claims  authority  to  make 
this  decision  by  virtue  of  section  3  of  the  act  of  Congress  of  July  5, 
1884,  entitled  "An  act  to  constitute  a  bureau  of  navigation  in  the 
Treasury  Department,"  which  reads  as  follows : 

That  the  commissioner  of  navigation  shall  be  charged  with  the 
supervision  of  the  laws  relating  to  the  admeasurement  of  vessels, 
and  the  assigning  of  signal  letters  thereto,  and  of  designating 
their  official  number;  and  on  all  questions  of  interpretation, 
growing  out  of  the  execution  of  the  laws  relating  to  these  sub- 
jects, and  relating  to  the  collection  of  tonnage  tax,  and  to  the 
refunding  of  such  tax  when  collected  erroneously  or  illegally,  his 
decision  shall  be  final. 


104  DECISIONS  OF  FEDERAL  COURTS 

The  plaintiff's  vessels  were  German  vessels,  and  on  the  19th  day  of 
June,  1886,  and  thereafter  until  now,  the  Government  of  Germany 
exacted  no  tonnage  tax  or  taxes  whatever  on  vessels  of  the  United 
States  arriving  in  German  ports. 

Upon  this  statement  of  the  law  and  the  facts,  the  plaintiff's  coun- 
sel contend  (1)  that  as  to  the  dues  collected  between  June  26,  1884, 
and  June  19,  1886,  the  plaintiff's  vessels  should  not  have  been  charged 
more  than  the  lower  rate  of  tonnage  tax  fixed  by  the  act  of  1884, 
under  the  favored  nation  clause  of  the  treaties,  whereas  the  defend- 
ants charged  six  cents  per  ton;  (2)  that  the  dues  collected  after  the 
passage  of  the  act  of  June  19,  1886,  and  prior  to  the  President's  proc- 
lamation, were  excessive,  for  the  same  reason;  (3)  that  no  tonnage 
tax  whatever  could  be  lawfully  collected  of  the  vessels  of  the  plain- 
tiff, after  the  passage  of  the  act  of  June  19,  1886,  because  that  act 
went  into  effect  immediately,  and  without  waiting  for  the  President's 
proclamation ;  (4)  that  the  act  of  July  5,  1884,  in  so  far  as  it  confers 
on  the  commissioner  of  navigation  the  power  of  deciding  finally  on 
all  questions  of  interpretation,  growing  out  of  the  execution  of  the 
laws  relating  to  the  collection  of  tonnage  tax,  and  the  refund  of  the 
same  when  illegally  or  erroneously  collected,  is  unconstitutional  and 
void. 

As  introductory  to  their  argument,  plaintiff's  counsel  referred  to 
the  policy  of  our  Government  in  relation  to  the  subject  of  navigation, 
which  it  is  claimed  has  been  from  the  beginning  to  establish  entire 
reciprocity  with  other  nations.  The  practice  has  been  to  ask  for  no 
exclusive  privileges  and  to  grant  none,  "but  to  offer  to  all  nations  and 
to  ask  from  them  entire  reciprocity  in  navigation."  1  Kent,  Comm. 
34,  note.  This  policy  has  been  judicially  recognized  by  the  Supreme 
Court  in  Oldfield  v.  Marriott,  10  How.  146;  and  it  is  asserted  that 
Congress  had  it  in  view  in  enacting  the  acts  of  1884  and  1886,  impos- 
ing the  tonnage  taxes.  The  review  presented  by  counsel  of  the  legis- 
lative and  diplomatic  correspondence  touching  this  subject  is  histor- 
ically interesting  and  instructive,  and  would  be  persuasive  in  the  case 
of  a  doubtful  meaning  of  an  act  of  Congress,  but  it  cannot  be  held  to 
affect  the  interpretation  of  laws  which  are  plain  and  unambiguous  in 
their  terms.  The  questions  before  the  court  must  be  determined  by 
the  ordinary  and  well  settled  rules  applicable  to  the  construction  of 
and  validity  of  statutes. 


NORTH  GERMAN  LLOYD  S.  S.  CO.  v.  HEDDEN  105 

Soon  after  the  passage  of  the  act  of  June  26,  1884,  claims  were 
presented  by  the  Government  of  Germany,  and  of  other  foreign 
Powers,  having  similar  treaty  stipulations  with  the  United  States,  in 
relation  to  navigation  for  the  benefit  of  the  three-cent  rate  of  tax, 
under  the  favored  nation  clause.  The  claims  having  been  referred  to 
the  Department  of  Justice,  the  attorney  general,  on  the  19th  of  Sep- 
tember, 1886,1  gave  the  following  opinion: 

The  discrimination  as  to  tonnage  duty  in  favor  of  vessels  sail- 
ing from  the  regions  mentioned  in  the  act  and  entered  in  our 
ports  is,  I  think,  purely  geographical  in  character,  inuring  to  the 
advantage  of  any  vessel  of  any  Power  that  may  choose  to  fetch 
and  carry  between  this  country  and  any  port  embraced  by  the 
fourteenth  section  of  the  act. 

I  see  no  warrant,  therefore,  to  claim  that  there  is  anything  in 
"the  most  favored  nation"  clause  of  the  treaty  between  this  coun- 
try and  the  powers  mentioned  that  entitles  them  to  have  the  privi- 
leges of  the  fourteenth  section  extended  to  their  vessels  sailing  to 
this  country  from  ports  outside  the  limitation  of  the  act. 

The  construction  thus  given  to  the  statute  is  clearly  consistent  with 
its  terms,  which  grant  the  privilege  of  the  minimum  tax  .to  all  vessels 
entered  in  United  States  from  certain  specified  foreign  ports,  and  not 
exclusively  to  the  vessels  of  nations  to  whom  those  ports  belong,  or 
in  whose  territories  the  ports  are  situate,  excepting  the  vessels  of 
those  Governments  only  which,  in  the  imposition  of  tonnage  taxes, 
discriminate  against  American  vessels.  In  accordance  with  this  con- 
struction, it  follows  that  no  particular  favor  is  conferred  on  any 
nation,  and  that,  with  the  exception  noted,  the  vessels  of  all  nations 
coming  from  the  privileged  ports  are  entered  in  the  United  States  on 
an  equal  footing.  Further  discussion  on  this  point  would  seem, 
therefore,  to  be  fruitless;  but  it  may  be  proper  to  observe  that  the 
construction  of  both  the  act  of  June  26,  1884,  and  that  of  June  19, 
1886,  and  the  complicated  questions  growing  out  of  the  claims  of 
foreign  Governments,  for  the  lower  rate  of  tonnage  tax  by  virtue  of 
their  treaty  rights,  were  brought  to  the  attention  of  Congress  by  the 
President's  message  of  January  14,  1889,  transmitting  a  report  of  the 
Secretary  of  State  in  reference  to  the  international  questions  arising 
from  the  imposition  of  differential  tonnage  dues  upon  vessels  enter- 
ing the  United  States  from  foreign  countries.  Ex.  Doc-House  Rep., 


1  [1885.]    Post,  p.  141. 


106  DECISIONS  OF  FEDERAL  COURTS 

50th  Cong.,  3d  Sess.  The  report,  after  mentioning  the  claims  of  the 
German  minister  for  a  reduction  of  the  tax  under  the  act  of  1884,. 
and  for  a  proper  refund  of  the  dues  charged  on  German  ships  enter- 
ing the  United  States  from  German  ports  since  the  date  of  the  act 
of  1886,  stated :  "To  this  suggestion  the  undersigned  was  unable  to 
respond,  the  matter  being  one  for  the  consideration  of  Congress.  But 
the  request  assuredly  deserves  equitable  consideration."  In  respect 
to  the  claim  now  made  by  the  plaintiff,  that  the  course  of  its  ships 
coming  from  Bremen  to  New  York  by  the  way  of  Southampton  is  not 
such  as  to  deprive  the  run  of  its  character  of  a  voyage  from  a  Ger- 
man port  to  a  port  in  the  United  States,  within  the  meaning  of  the 
act  of  1886,  the  report  says: 

But  it  has  been  held  by  the  commissioner  of  navigation  that 
the  voyage  can  not  be  so  regarded,  and  that  the  vessels  must  pay 
dues  as  coming  from  Southampton,  a  British  port.  Similar  rul- 
ings have  been  made  in  respect  to  other  vessels  of  different  na- 
tionality. 

And  the  report  further  adds: 

Another  instance  of  complication  is  that  of  a  vessel  starting 
from,  we  will  say,  a  6-30  cent  port,  and  calling  on  her  way  to 
the  United  States  at  a  3-15  cent  port,  and  a  free  port.  Other 
combinations  will  readily  suggest  themselves,  and  the  need  not 
be  stated.  But  in  each  case  the  vessel  is  required  to  pay  the 
highest  rate,  without  reference  to  the  amount  of  cargo  obtained 
at  the  various  ports  from  which  she  comes.  Thus  a  penalty  may 
practically  be  imposed  in  many  cases  on  indirect  voyages.  It  is 
conceived  that  in  many  instances  the  main  purpose  of  the  Act 
may  be  defeated  by  these  rulings,  but  it  must  be  admitted  that 
the  law  contains  no  provision  to  meet  such  cases.  .  .  .  This 
appears  to  be  a  proper  subject  for  the  consideration  of  Congress. 

From  an  examination  of  the  above  extracts  from  his  report,  it  will 
be  seen  that  the  Secretary  of  State  was  of  the  opinion  that  the  ques- 
tions referred  to  were  to  be  addressed  to  the  political,  and  not  to  the 
judicial,  branch  of  the  Government,  and  that  Congress  alone  could  be 
looked  to  for  the  redress  of  the  class  of  wrongs  complained  of  by 
the  plaintiff,  and  to  prevent  their  repetition.  The  plaintiff's  counsel 
deny  the  correctness  of  the  construction  given  to  the  act  of  1884  by 


NORTH  GERMAN  LLOYD  S.  S.  CO.  v.  REDDEN  107 

the  attorney  general,  and  insist  that  the  difference  in  tonnage  rates, 
by  which  certain  ports  specially  named  in  the  act  are  favored,  is  a 
particular  favor  to  the  countries  to  which  those  .ports  belong,  "in 
respect  to  their  commerce  and  navigation,"  which  ipso  facto  accrues, 
in  pursuance  of  treaty  right,  to  German  vessels  coming  from  German 
ports.  It  is  also  asserted  that  the  treaty  stipulations  with  Germany- 
are  paramount  to  the  later  acts  of  Congress,  and  that  the  former  can 
not  be  annihilated  by  the  latter.  Admitting  for  the  moment  that  the 
attorney  general  may  have  misconstrued  the  act,  still  it  cannot  be 
questioned  that,  excepting  where  rights  have  become  vested  under  a 
treaty,  to  use  the  expression  of  Judge  SWAYNE,  in  the  Cherokee  To- 
bacco Case,  1 1  Wall.  616,  "  a  treaty  may  supersede  a  prior  act  of  Con- 
gress and  an  act  of  Congress  may  supersede  a  prior  treaty."  The 
commissioner  of  navigation  held  that  the  acts  of  1884  and  1886 
were  inconsistent  with  the  treaties,  and  being  of  a  later  date  must 
prevail,  and  in  so  ruling  he  is  not  without  authority  of  adjudged 
cases.  In  Foster  v.  Neilson,  2  Pet.  314,  Chief  Justice  MARSHALL,  in 
delivering  the  opinion  of  the  court,  said : 

Our  Constitution  declares  a  treaty  to  be  a  law  of  the  land.  It 
is  consequently  to  be  regarded  in  the  courts  of  justice  as  equiva- 
lent to  an  act  of  the  legislature,  whenever  it  operates  of  itself, 
without  the  aid  of  any  legislative  provision.  But  when  the 
terms  of  the  stipulation  import  a  contract,  when  either  of  the 
parties  engage  to  perform  a  particular  act,  the  treaty  addresses 
itself  to  the  political,  not  the  judicial,  department  and  the  legis- 
lature must  execute  the  contract  before  it  can  become  a  rule  for 
the  court. 

The  same  doctrine  is  held  in  Taylor  v.  Morton,  2  Curt.  454;  Ropes 
v.  Clinch,  8  Blatchf.  304.  In  the  Cherokee  Tobacco  Case,  supra, 
there  was  an  open  conflict  between  a  treaty  contract  and  a  subsequent 
law,  and  the  question  was  as  to  which  should  prevail.  The  107th 
section  of  the  Internal  Revenue  Act  of  July  20,  1868,  provided  "that 
the  internal  revenue  laws  imposing  taxes  on  distilled  spirits,  fer- 
mented liquors,  tobacco,  snuff,  and  cigars  shall  be  construed  to  ex- 
tend to  such  articles  produced  anywhere  within  the  exterior  boun- 
daries of  the  United  States,  whether  the  same  be  within  a  collection 


108  DECISIONS  OF  FEDERAL  COURTS 

Every  Cherokee  Indian  and  freed  person  residing  in  the 
Cherokee  Nation  shall  have  the  right  to  sell  any  products  of  his 
farm,  including  his  or  her  livestock,  or  any  merchandise  or 
manufactured  products,  and  to  ship  and  drive  the  same  to  market 
Avithout  restraint,  paying  the  tax  thereon  which  is  now  or  may 
be  levied  by  the  United  States  on  the  quantity  sold  outside  of 
the  Indian  Territory. 

The  collection  officers  had  seized  a  quantity  of  tobacco  belonging 
to  the  claimants  which  was  found  in  the  Cherokee  Nation,  outside 
of  any  collection  district  of  the  United  States,  and  exemption  from 
duty  was  claimed  by  virtue  of  the  treaty.  It  was  admitted  that  the 
repugnancy  between  the  treaty  and  the  statute  was  clear,  and  that 
they  could  not  stand  together;  that  one  or  the  other  must  yield.  The 
court  decided  that  the  language  of  the  section  was  as  clear  and 
explicit  as  could  be  employed.  It  embraced  indisputably  the  Indian 
Territory,  and  Congress  not  having  thought  proper  to  exclude  them, 
it  was  not  for  the  court  to  make  the  exception;  and  that  the  conse- 
quences arising  from  the  repeal  of  the  treaty  were  matters  for  legis- 
lative and  not  judicial  action,  and  if  a  wrong  had  been  done,  the 
power  of  redress  was  with  Congress  and  not  with  the  judiciary.  In 
Taylor  v.  Morton,  the  facts  were  these:  Article  6  of  the  treaty  of 
1832,  with  Russia,  stipulated  that  "no  higher  or  other  duties  shall  be 
imposed  upon  the  importations  into  the  United  States  of  any  article 
the  produce  or  manufacture  of  Russia,  than  are  or  shall  be  payable 
on  the  like  article  being  the  produce  or  manufacture  of  any  other  for- 
eign country."  This  was  held  by  the  court  to  be  merely  an  agree- 
ment, to  be  carried  into  effect  by  Congress,  and  not  to  be  enforced  by 
the  court,  and  that  an  act  of  Congress  laying  a  duty  of  $25  a  ton,  on 
hemp  from  India,  and  $40  a  ton,  on  hemp  from  other  countries,  did 
not  authorize  the  courts  to  decide  that  Russian  hemp  should  be  ad- 
mitted at  the  lower  rate.  Such  a  promise,  it  was  said,  addresses  it- 
self to  the  political  and  not  to  the  judicial  department  of  the  Govern- 
ment, and  the  courts  can  not  try  the  question  whether  it  has  been 
observed  or  not.  The  court  expressly  declined  to  give  any  opinion 
on  the  merits  of  the  case,  holding  that  the  questions,  whether  treaty 
obligations  have  been  kept  or  not,  and  whether  treaty  promises  shall 
be  withdrawn  or  performed,  are  matters  that  belong  to  diplomacy  and 
legislation,  and  not  to  the  administration  of  the  laws.  If  Congress 
has  departed  from  the  treaty,  it  is  immaterial  to  inquire  whether  the 
departure  was  accidental  or  designed,  and  if  the  latter  whether  the 


TERLINDEN  v.  AMES  109 

reasons  therefor  were  good  or  bad.  If,  by  the  act  in  question,  they 
have  not  departed  from  the  treaty,  the  plaintiff  has  no  case.  If  they 
have,  their  act  is  the  municipal  law  of  the  country,  and  any  complaint, 
either  by  the  citizen  or  the  foreigner,  must  be  made  to  those  who 
alone  are  empowered  by  the  constitution  to  judge  of  its  grounds  and 
act  as  may  be  suitable  and  just. 

Let  judgment  be  entered  in  each  case  for  the  defendant. 


TERLINDEN  v.  AMES1 

APPEAL  FROM  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 

NORTHERN  DISTRICT  OF  ILLINOIS 
No.  475.    Argued  January  6,  7,  1902.— Decided  February  24,  1902. 

One  Terlinden,  alias  Graefe,  was  accused  of  various  acts  of  forgery, 
counterfeiting,  and  the  utterance  of  forged  papers,  committed  during 
the  year  1901,  in  the  kingdom  of  Prussia.  After  the  commission  of 
these  extraditable  offences  he  fled  from  Germany  and  was  appre- 
hended in  Illinois  in  1901,  as  a  fugitive  from  justice  upon  a  warrant 
properly  issued  by  Mark  A.  Fo.ote,  United  States  Commissioner  for 
the  Northern  District  of  Illinois,  upon  the  duly  verified  complaint  of 
Dr.  Walther  Wever,  Imperial  German  Consul  at  Chicago.  On  habeas 
corpus  proceedings,  the  District  Court  found  that  the  accused  was  law- 
fully restrained  of  his  liberty,  and  the  prisoner  was  remanded  to  the 
custody  of  John  C.  Ames,  Marshal  for  the  Northern  District  of 
Illinois. 

From  this  order  an  appeal  was  taken  to  the  Supreme  Court  of  the 
United  States.  Among  the  errors  assigned,  were  the  following  two: 
that  the  District  Court  erred  in  declining  to  hold  that  no  treaty  exists 
between  the  United  States  and  the  kingdom  of  Prussia  or  the  German 
Empire,  and  in  assuming  the  existence  of  such  treaty.2 

MR.  CHIEF  JUSTICE  FULLER  delivered  the  opinion  of  the  court. 

This  brings  us  to  the  real  question,  namely,  the  denial  of  the  exis- 
tence of  a  treaty  of  extradition  between  the  United  States  and  the 


1  184  U.  S.  Reports,  270;  October  term,  1901. 

2  This  statement  is  substituted  for  that  of  the  report. 


110  DECISIONS  OF  FEDERAL  COURTS 

Kingdom  of  Prussia,  or  the  German  Empire.  In  these  proceedings 
the  application  was  made  by  the  official  representative  of  both  the 
Empire  and  the  Kingdom  of  Prussia,  but  was  based  on  the  extradition 
treaty  of  1852.  The  contention  is  that,  as  the  result  of  the  formation 
of  the  German  Empire,  this  treaty  had  been  terminated  by  operation 
oi  law. 

Treaties  are  of  different  kinds  and  terminable  in  different  ways. 
The  fifth  article  of  this  treaty  provided,  in  substance,  that  it  should 
continue  in  force  until  1858,  and  thereafter  until  the  end  of  a  twelve 
months'  notice  by  one  of  the  parties  of  the  intention  to  terminate  it. 
No  such  notice  has  ever  been  given,  and  extradition  has  been  fre- 
quently awarded  under  it  during  the  entire  intervening  time. 

Undoubtedly  treaties  may  be  terminated  by  the  absorption  of  Powers 
into  other  Nationalities  and  the  loss  of  separate  existence,  as  in  the 
case  of  Hanover  and  Nassau,  which  became  by  conquest  incorporated 
into  the  Kingdom  of  Prussia  in  1866.  Cessation  of  independent  exis- 
tence rendered  the  execution  of  treaties  impossible.  But  where  sover- 
eignty in  that  respect  is  not  extinguished,  and  the  power  to  execute 
remains  unimpaired,  outstanding  treaties  can  not  be  regarded  as 
avoided  because  of  impossibility  of  performance. 

This  treaty  was  entered  into  by  His  Majesty  the  King  of  Prussia  in 
his  own  name  and  in  the  names  of  eighteen  other  States  of  the  Ger- 
manic Confederation,  including  the  Kingdom  of  Saxony  and  the  free 
city  of  Frankfort,  and  was  acceded  to  by  six  other  States,  including 
the  Kingdom  of  Wurtemburg,  and  the  free  Hanseatic  city  of  Bremen, 
but  not  including  the  Hanseatic  free  cities  of  Hamburg  and  Lubeck. 
The  war  between  Prussia  and  Austria  in  1866  resulted  in  the  extinction 
of  the  Germanic  Confederation  and  the  absorption  of  Hanover,  Hesse 
Cassel,  Nassau  and  the  free  city  of  Frankfort,  by  Prussia. 

The  North  German  Union  was  then  created  under  the  praesidium 
of  the  Crown  of  Prussia,  and  our  minister  to  Berlin,  George  Bancroft, 
thereupon  recognized  officially  not  only  the  Prussian  Parliament,  but 
also  the  Parliament  of  the  North  German  United  States,  and  the  col- 
lective German  Customs  and  Commerce  Union,  upon  the  ground  that 
by  the  paramount  constitution  of  the  North  German  United  States,  the 
King  of  Prussia,  to  whom  he  was  accredited,  was  at  the  head  of  those 
several  organizations  or  institutions ;  and  his  action  was  entirely  ap- 
proved by  this  Government.  Messages  and  Documents,  Dep.  of  State, 


TERLINDEN  v.  AMES  111 

1867-8,  Part  I,  p.  601 ;  Dip.  Correspondence,  Secretary  Seward  to 
Mr.  Bancroft,  Dec.  9,  1867. 

February  22,  1868,  a  treaty  relative  to  naturalization  was  concluded 
between  the  United  States  and  His  Majesty,  the  King  of  Prussia,  on 
behalf  of  the  North  German  Confederation,  the  third  article  of  which 
read  as  follows :  "The  convention  for  the  mutual  delivery  of  criminals, 
fugitives  from  justice,  in  certain  cases,  concluded  between  the  United 
States  on  the  one  part  and  Prussia  and  other  States  of  Germany  on  the 
other  part,  the  sixteenth  day  of  June,  one  thousand  eight  hundred  and 
fifty-two,  is  hereby  extended  to  all  the  States  of  the  North  German 
Confederation."  15  Stat.  615.  This  recognized  the  treaty  as  still  in 
force,  and  brought  the  Republics  of  Lubeck  and  Hamburg  within  its 
scope.  Treaties  were  also  made  in  that  year  between  the  United 
States  and  the  Kingdoms  of  Bavaria  and  Wurtemburg,  concerning 
naturalization,  which  contained  the  provision  that  the  previous  conven- 
tions between  them  and  the  United  States  in  respect  of  fugitives  from 
justice  should  remain  in  force  without  change. 

Then  came  the  adoption  of  the  Constitution  of  the  German  Empire. 
It  found  the  King  of  Prussia,  the  chief  executive  of  the  North  German 
Union,  endowed  with  power  to  carry  into  effect  its  international  obliga- 
tions, and  those  of  his  kingdom,  and  it  perpetuated  and  confirmed  that 
situation.  The  official  promulgation  of  that  Constitution  recited  that 
it  was  adopted  instead  of  the  Constitution  of  the  North  German  Union, 
and  its  preamble  declared  that  "His  Majesty  the  King  of  Prussia,  in 
the  name  of  the  North  German  Union,  His  Majesty  the  King  of 
Bavaria,  His  Majesty  the  King  of  Wurtemburg,  His  Highness  the 
Grand  Duke  of  Baden,  and  his  Royal  Highness  the  Grand  Duke  of 
Hesse  and  by  Rhine  for  those  parts  of  the  Grand  Duchy  of  Hesse 
which  are  situated  south  of  the  Main,  conclude  an  eternal  alliance 
for  the  protection  of  the  territory  of  the  Confederation,  and  of  the 
laws  of  the  same,  as  well  as  for  the  promotion  of  the  welfare  of  the 
German  people."  As  we  have  heretofore  seen,  the  laws  of  the  Empire 
were  to  take  precedence  of  those  of  the  individual  States,  and  it  was 
vested  with  the  power  of  general  legislation  in  respect  of  crimes. 

Article  11  read  "The  King  of  Prussia  shall  be  the  president  of  the 
Confederation,  and  shall  have  the  title  of  German  Emperor.  The  Em- 
peror shall  represent  the  Empire  among  nations,  declare  war,  and  con- 
clude peace  in  the  name  of  the  same ;  enter  into  alliances  and  other 


112  DECISIONS  OF  FEDERAL  COURTS 

conventions  with  foreign  countries,  accredit  ambassadors,  and  receive 
them.  ...  So  far  as  treaties  with  foreign  countries  refer  to  mat- 
ters which,  according  to  Article  IV,  are  to  be  regulated  by  the  legisla- 
ture of  the  Empire,  the  consent  of  the  Federal  Council  shall  be  required 
for  their  ratification,  and  the  approval  of  the  Diet  shall  be  necessary 
to  render  them  valid." 

It  is  contended  that  the  words  in  the  preamble  translated  "an  eternal 
alliance"  should  read  "an  eternal  union,"  but  this  is  not  material,  for 
admitting  that  the  Constitution  created  a  composite  State  instead  of  a 
system  of  confederated  States,  and  even  that  it  was  called  a  con- 
federated Empire  rather  to  save  the  amour  propre  of  some  of  its 
component  parts  than  otherwise,  it  does  not  necessarily  follow  that  the 
Kingdom  of  Prussia  lost  its  identity  as  such,  or  that  treaties  thereto- 
fore entered  into  by  it  could  not  be  performed  either  in  the  name  of 
its  King  or  that  of  the  Emperor.  We  do  not  find  in  this  constitution 
any  provision  which  in  itself  operated  to  abrogate  existing  treaties  or 
to  affect  the  status  of  the  Kingdom  of  Prussia  in  that  regard.  Nor  is 
there  anything  in  the  record  to  indicate  that  outstanding  treaty  obliga- 
tions have  been  disregarded  since  its  adoption.  So  far  from  that  being 
so,  those  obligations  have  been  faithfully  observed. 

And  without  considering  whether  extinguished  treaties  can  be  re- 
newed by  tacit  consent  under  our  Constitution,  we  think  that  on  the 
question  whether  this  treaty  has  ever  been  terminated,  governmental 
action  in  respect  to  it  must  be  regarded  as  of  controlling  importance. 
During  the  period  from  1871  to  the  present  day,  extradition  from  this 
country  to  Germany,  and  from  Germany  to  this  country,  has  been 
frequently  granted  under  the  treaty,  which  has  thus  been  repeatedly 
recognized  by  both  governments  as  in  force.  Moore's  Report  on  Ex- 
tradition with  Returns  of  all  Cases,  1890. 

In  1889,  in  response  to  a  request  for  information  on  international 
extradition  as  practiced  by  the  German  Government,  the  Imperial  For- 
eign Office  transmitted  to  our  charge  at  Berlin  a  memorial  on  the  sub- 
ject, in  the  note  accompanying  which  it  was  said:  "The  questions  re- 
ferred to,  in  so  far  as  they  could  not  be  uniformly  answered  for  all 
the  confederated  German  States,  have  been  answered  in  that  docu- 
ment as  relating  to  the  case  of  applications  for  extradition  addressed 
to  the  Empire  or  Prussia."  It  was  stated  in  the  memorial,  among 
other  things : 


TERLINDEN  v.  AMES  113 

In  so  far  as  by  laws  and  treaties  of  the  Empire  relating  to  the 
extradition  of  criminals,  provisions  which  bind  all  the  States  of  the 
union  have  not  been  made,  those  States  are  not  hindered  from  in- 
dependently regulating  extradition  by  agreements  with  foreign 
States,  or  by  laws  enacted  for  their  own  territory. 

Of  conventions,  some  of  an  earlier,  some  of  a  later  period,  for 
the  extradition  of  criminals,  entered  into  by  individual  States  of 
the  union  with  various  foreign  States,  there  exist  a  number,  and 
in  particular  such  with  France,  the  Netherlands,  Austria-Hungary, 
and  Russia.  With  the  United  States  of  America,  also,  extradition 
is  regulated  by  various  treaties,  as,  besides  the  treaty  of  June  16, 
1852,  which  applies  to  all  of  the  States  of  the  former  North  Ger- 
man Union,  and  also  to  Hesse,  south  of  the  Main,  and  to  Wiirtem- 
burg,  there  exist  separate  treaties  with  Bavaria  and  Baden,  of 
September  12,  1853,  and  January  30,  1857,  respectively.  Moore's 
Report,  93,  94. 

Thus  it  appears  that  the  German  Government  has  officially  recog- 
nized, and  continues  to  recognize,  the  treaty  of  June  16,  1852,  as  still 
in  force,  as  well  as  similar  treaties  with  other  members  of  the  Empire, 
so  far  as  the  latter  has  not  taken  specific  action  to  the  contrary  or  in 
lieu  thereof.  And  see  Laband,  Das  Staatsrecht  des  Deutschen  Reiches 
(1894),  122,  123,  124,  142. 

It  is  out  df  the  question  that  a  citizen  of  one  of  the  German  States, 
charged  with  being  a  fugitive  from  its  justice,  should  be  permitted  to 
call  on  the  courts  of  this  country  to  adjudicate  the  correctness  of  the 
conclusions  of  the  Empire  as  to  its  powers  and  the  powers  of  its  mem- 
bers, and  especially  as  the  Executive  Department  of  our  Government 
has  accepted  these  conclusions  and  proceeded  accordingly. 

The  same  is  true  as  respects  many  other  treaties  of  serious  moment, 
with  Prussia,  and  with  particular  States  of  the  Empire,  and  it  would 
be  singular  indeed,  if  after  the  lapse  of  years  of  performance  of  their 
stipulations,  these  treaties  must  be  held  to  have  terminated  because  of 
the  inability  to  perform  during  all  that  time  of  one  of  the  parties. 

In  the  notes  accompanying  the  State  Department's  compilation  of 
Treaties  and  Conventions  between  the  United  States  and  other  Powers, 
published  in  1889,  Mr.  J.  C.  Bancroft  Davis  treats  of  the  subject  thus : 

The  establishment  of  the  German  Empire  in  1871,  and  the  com- 
plex relations  of  its  component  parts  to  each  other  and  to  the  Em- 
pire, necessarily  give  rise  to  questions  as  to  the  treaties  entered 
into  with  the  North  German  Confederation  and  with  many  of  the 


114  DECISIONS  OF  FEDERAL  COURTS 

States  composing  the  Empire.  It  can  not  be  said  that  any  fixed 
rules  have  been  established. 

Where  a  State  has  lost  its  separate  existence,  as  in  the  case  of 
Hanover  and  Nassau,  no  questions  can  arise. 

Where  no  new  treaty  has  been  negotiated  with  the  Empire,  the 
treaties  with  the  various  States  which  have  preserved  a  separate 
existence  have  been  resorted  to. 

The  question  of  the  existence  of  the  extradition  treaty  with 
Bavaria  was  presented  to  the  United  States  District  Court,  on  the 
application  of  a  person  accused  of  forgery  committed  in  Bavaria, 
to  be  discharged  on  habeas  corpus,  who  was  in  custody  after  the 
issue  of  a  mandate,  at  the  request  of  the  minister  of  Germany,  the 
court  held  that  the  treaty  was  admitted  by  both  governments  to  be 
in  existence. 

Such  a  question  is,  after  all,  purely  a  political  one. 

The  case  there  referred  to  is  that  of  In  re  Thomas,  12  Blatch.  370, 
in  which  the  continuance  of  the  extradition  treaty  with  Bavaria  was 
called  in  question,  and  Mr.  Justice  Blatchford,  then  District  Judge, 
said: 

It  is  further  contended,  on  the  part  of  Thomas,  that  the  conven- 
tion with  Bavaria  was  abrogated  by  the  absorption  of  Bavaria  into 
the  German  Empire.  An  examination  of  the  provisions  of  the 
Constitution  of  the  German  Empire  does  not  disclose  anything 
which  indicates  that  then  existing  treaties  between  the  several 
States  composing  the  confederation  called  the  German  Empire, 
and  foreign  countries,  were  annulled,  or  to  be  considered  as 
abrogated. 

Indeed,  it  is  difficult  to  see  how  such  a  treaty  as  that  between 
Bavaria  and  the  United  States  can  be  abrogated  by  the  action  of 
Bavaria  alone,  without  the  consent  of  the  United  States.  Where 
a  treaty  is  violated  by  one  of  the  contracting  parties,  it  rests  alone 
with  the  injured  party  to  pronounce  it  broken,  the  treaty  being, 
in  such  case,  not  absolutely  void,  but  voidable,  at  the  election  of 
the  injured  party,  who  may  waive  or  remit  the  infraction  com- 
mitted, or  may  demand  a  just  satisfaction,  the  treaty  remaining 
obligatory  if  he  chooses  not  to  come  to  a  rupture.  1  Kent's  Com. 
174.  In  the  present  case  the  mandate  issued  by  the  Government 
of  the  United  States  shows  that  the  convention  in  question  is  re- 
garded as  in  force  both  by  the  United  States  and  by  the  German 
Empire,  represented  by  its  envoys,  and  by  Bavaria,  represented  by 
the  same  envoy.  The  application  of  the  foreign  government  was 
made  through  the  proper  diplomatic  representative  of  the  German 
Empire  and  of  Bavaria,  and  the  complaint  before  the  commis- 
sioner was  made  by  the  proper  consular  authority  representing  the 
German  Empire  and  also  representing  Bavaria. 


TERLINDEN  v.  AMES  115 

We  concur  in  the  view  that  the  question  whether  power  remains  in 
a  foreign  State  to  carry  out  its  treaty  obligations  is  in  its  nature 
political  and  not  judicial,  and  that  the  courts  ought  not  to  interfere  with 
the  conclusions  of  the  political  department  in  that  regard. 

Treaties  of  extradition  are  executory  in  their  character,  and  fall 
within  the  rule  laid  down  by  Chief  Justice  Marshall  in  Foster  v.  Neilson, 
2  Pet.  253,  314,  thus:  "Our  Constitution  declares  a  treaty  to  be  the 
law  of  the  land.  It  is,  consequently,  to  be  regarded  in  courts  of  justice 
as  equivalent  to  an  act  of  the  legislature,  whenever  it  operates  of  itself 
without  the  aid  of  any  legislative  provision.  But  when  the  terms  of  the 
stipulation  import  a  contract,  when  either  of  the  parties  engages  to  per- 
form a  particular  act,  the  treaty  addresses  itself  to  the  political,  not  the 
judicial  department." 

In  Doe  v.  Braden,  16  How.  635,  656,  where  it  was  contended  that 
so  much  of  the  treaty  of  February  22,  1819,  ceding  Florida  to  the 
United  States,  as  annulled  a  certain  land  grant,  was  void  for  want  of 
power  in  the  King  of  Spain  to  ratify  such  a  provision,  it  was  held  that 
whether  or  not  the  King  of  Spain  had  power,  according  to  the  Consti- 
tution of  Spain,  to  annul  the  grant,  was  a  political  and  not  a  judicial 
question,  and  was  decided  when  the  treaty  was  made  and  ratified. 

Mr.  Chief  Justice  Taney  said :  "The  treaty  is  therefore  a  law  made 
by  the  proper  authority,  and  the  courts  of  justice  have  no  right  to  annul 
or  disregard  any  of  its  provisions,  unless  they  violate  the  Constitution 
of  the  United  States.  It  is  their  duty  to  interpret  it  and  administer  it 
according  to  its  terms.  And  it  would  be  impossible  for  the  executive 
department  of  the  Government  to  conduct  our  foreign  relations  with 
any  advantage  to  the  country,  and  fulfil  the  duties  which  the  Consti- 
tution has  imposed  upon  it,  if  every  court  in  the  country  was  authorized 
to  inquire  and  decide  whether  the  person  who  ratified  the  treaty  on 
behalf  of  a  foreign  nation  had  the  power  by  its  constitution  and  laws, 
to  make  the  engagements  into  which  he  entered." 

Extradition  may  be  sufficiently  defined  to  be  the  surrender  by  one 
nation  to  another  of  an  individual  accused  or  convicted  of  an  offence 
outside  of  its  own  territory,  and  within  the  territorial  jurisdiction  of 
the  other,  which,  being  competent  to  try  and  to  punish  him,  demands 
the  surrender. 

In  the  United  States,  the  general  opinion  and  practice  have  been  that 
extradition  should  be  declined  in  the  absence  of  a  conventional  or 


116  DECISIONS  OF  FEDERAL  COURTS 

legislative  provision.     1  Moore  on  Extradition,  21 ;  United  States  v. 
Rauscher,  119  U.  S.  407. 

The  power  to  surrender  is  clearly  included  within  the  treaty-making 
power  and  the  corresponding  power  of  appointing  and  receiving  am- 
bassadors and  other  public  ministers.  Holmes  v.  Jennlson,  14  Pet.  540, 
569.  Its  exercise  pertains  to  public  policy  and  governmental  adminis- 
tration, is  devolved  on  the  Executive  authority,  and  the  warrant  of 
surrender  is  issued  by  the  Secretary  of  State  as  the  representative  of 
the  President  in  foreign  affairs. 

If  it  be  assumed  in  the  case  before  us,  and  the  papers  presented  on 
the  motion  for  a  stay  advise  us  that  such  is  the  fact,  that  the  commis- 
sioner, on  hearing,  deemed  the  evidence  sufficient  to  sustain  the  charges, 
and  certified  his  findings  and  the  testimony  to  the  Secretary  of  State, 
and  a  warrant  for  the  surrender  of  Terlinden  on  the  proper  requisition 
was  duly  issued,  it  can  not  be  successfully  contended  that  the  courts 
could  properly  intervene  on  the  ground  that  the  treaty  under  which 
both  governments  had  proceeded,  had  terminated  by  reason  of  the 
adoption  of  the  constitution  of  the  German  Empire,  notwithstanding 
the  judgment  of  both  governments  to  the  contrary. 

The  decisions  of  the  Executive  Department  in  matters  of  extradition, 
within  its  own  sphere,  and  in  accordance  with  the  Constitution,  are  not 
open  to  judicial  revision,  and  it  results  that  where  proceedings  for 
extradition,  regularly  and  constitutionally  taken  under  the  acts  of  Con- 
gress, are  pending,  they  can  not  be  put  an  end  to  by  writs  of  habeas 
corpus. 

The  District  Court  was  right,  and  its  final  order  is 

Affirmed. 


DISCONTO  GESELLSCHAFT  v.  UMBREIT l 

ERROR  TO  THE  CIRCUIT  COURT  OF  MILWAUKEE  COUNTY 
(BRANCH  No.  1),  STATE  OF  WISCONSIN 

No.  63.    Argued  December  10.  11.  1907.     Decided  February  24,  1908. 

It  is  too  late  to  raise  the  Federal  question  on  motion  for  rehearing  in  the  state 
court,  unless  that  court  entertains  the  motion  and  expressly  passes  on  the 
Federal  question. 

While  aliens  are  ordinarily  permitted  to  resort  to  our  courts  for  redress  of 
wrongs  and  protection  of  rights,  the  removal  of  property  to  another  juris- 
diction for  adjustment  of  claims  against  it  is  a  matter  of  comity  and  not 
of  absolute  right,  and,  in  the  absence  of  treaty  stipulations,  it  is  within  the 
power  of  a  State  to  determine  its  policy  in  regard  thereto. 

The  refusal  by  a  State  to  exercise  comity  in  such  manner  as  would  impair  the 
rights  of  local  creditors  by  removing  a  fund  to  a  foreign  jurisdiction  for 
administration  does  not  deprive  a  foreign  creditor  of  his  property  without 
due  process  of  law  or  deny  to  him  the  equal  protection  of  the  law;  and  so 
held  as  to  a  judgment  of  the  highest  court  of  Wisconsin  holding  the  attach- 
ment of  a  citizen  of  that  State  superior  to  an  earlier  attachment  of  a  for- 
eign creditor. 

While  the  treaty  of  1828  with  Prussia  has  been  recognized  as  being  still  in 
force  by  both  the  United  States  and  the  German  Empire,  there  is  nothing 
therein  undertaking  to  change  the  rule  of  national  comity  that  permits  a 
country  to  first  protect  the  rights  of  its  own  citizens  in  local  property  before 
permitting  it  to  be  taken  out  of  its  jurisdiction  for  administration  in  favor 
of  creditors  beyond  its  borders. 

127  Wisconsin,  676,  affirmed. 


Mr.  Justice  DAY  delivered  the  opinion  of  the  court. 

The  Disconto  Gesellschaft,  a  banking  corporation  of  Berlin,  Ger- 
many, began  an  action  in  the  Circuit  Court  of  Milwaukee  County, 
Wisconsin,  on  August  17,  1901,  against  Gerhard  Terlinden  and  at  the 
same  time  garnisheed  the  First  National  Bank  of  Milwaukee.  The 
bank  appeared  and  admitted  an  indebtedness  to  Terlinden  of  $6,420. 
The  defendant  in  error  Umbreit  intervened  and  filed  an  answer,  and 
later  an  amended  answer. 

A  reply  was  filed,  taking  issue  upon  certain  allegations  of  the 
answer,  and  a  trial  was  had  in  the  Circuit  Court  of  Milwaukee  County, 
in  which  the  court  found  the  following  facts : 


U.  S.  Reports,  570;  October  term,  1907. 


118  DECISIONS  OF  FEDERAL  COURTS 

That  on  the  17th  day  of  August,  1901,  the  above-named  plain- 
tiff, the  Disconto  Gesellschaft,  commenced  an  action  in  this 
court  against  the  above-named  defendant,  Gerhard  Terlinden,  for 
the  recovery  of  damages  sustained  by  the  tort  of  the  said  defen- 
dant, committed  in  the  month  of  May,  1901 ;  that  said  defendant 
appeared  in  said  action  by  A.  C.  Umbreit,  his  attorney,  on  August 
19,  1901,  and  answered  the  plaintiff's  complaint ;  that  there- 
after such  proceedings  were  had  in  said  action  that  judgment  was 
duly  given  on  February  19,  1904,  in  favor  of  said  plaintiff,  Dis- 
conto Gesellschaft,  and  against  said  defendant,  Terlinden,  for 
$94,145.11  damages  and  costs;  that  $85,371.49,  with  interest  from 
March  26,  1904,  is  now  due  and  unpaid  thereon;  that  at  the  time 
of  the  commencement  of  said  action,  to  wit,  on  August  17,  1901, 
process  in  garnishment  was  served  on  the  above-named  garnishee, 
First  National  Bank  of  Milwaukee,  as  garnishee  of  the  defendant 
Terlinden. 

That  on  August  9,  1901,  and  on  August  14,  1901,  a  person  giv- 
ing his  name  as  Theodore  Grafe  deposited  in  said  First  National 
Bank  of  Milwaukee  the  equivalent  of  German  money  aggregating 
$6,420.00  to  his  credit  upon  account ;  that  said  sum  has  remained 
in  said  bank  ever  since,  and  at  the  date  hereof  with  interest  ac- 
crued thereon  amounted  to  $6,969.47. 

That  the  defendant  Gerhard  Terlinden  and  said  Theodore 
Grafe,  mentioned  in  the  finding,  are  identical  and  the  same 
person. 

That  the  interpleaded  defendant,  Augustus  C.  Umbreit,  on 
March  21,  1904,  commenced  an  action  in  this  court  against  the 
defendant  Terlinden  for  recovery  for  services  rendered  between 
August  16,  1901,  and  February  1,  1903;  that  no  personal  service 
of  the  summons  therein  was  had  on  the  said  summons  therein 
was  served  by  publication  only  and  without  the  mailing  of  a  copy 
of  the  summons  and  of  complaint  to  said  defendant ;  that  said  de- 
fendant did  not  appear  therein;  that  on  June  11,  1904,  judgment 
was  given  in  said  action  by  default  in  favor  of  said  Augustus  C. 
Umbreit  and  against  said  defendant  Terlinden  for  $7,500  dam- 
ages, no  part  whereof  has  been  paid;  that  at  the  time  of  the 
commencement  of  said  action  process  of  garnishment  was  served, 
to  wit,  on  March  22,  1904,  on  the  garnishee,  First  National  Bank 
of  Milwaukee,  as  garnishee  of  said  defendant  Terlinden. 

That  the  defendant  Terlinden  at  all  the  times  set  forth  in 
finding  number  one  was  and  still  is  a  resident  of  Germany; 
that  about  July  11,  1901,  he  absconded  from  Germany  and  came 
to  the  State  of  Wisconsin  and  assumed  the  name  of  Theodore 
Grafe;  that  on  August  16,  1901,  he  was  apprehended  as  a  fugi- 
tive from  justice  upon  extradition  proceedings  duly  instituted 
against  him,  and  was  thereupon  extradited  to  Germany. 


DISCONTO  GESELLSCHAFT  v.  UMBREIT  119 

That  the  above-named  plaintiff,  the  Disconto  Gesellschaft,  at 
all  the  times  set  forth  in  the  findings  was,  ever  since  has  been 
and  still  is  a  foreign  corporation,  to.  wit,  of  Germany,  and  during 
all  said  time  had  its  principal  place  of  business  in  Berlin,  Ger- 
many; that  the  above-named  defendant,  Augustus  C.  Umbreit, 
during  all  said  times  was  and  still  is  a  resident  of  the  State  of 
Wisconsin. 

That  on  or  about  the  27th  day  of  July,  1901,  proceedings  in 
bankruptcy  were  instituted  in  Germany  against  said  defendant 
Terlinden,  and  Paul  Kecking  appointed  trustee  of  his  estate  in 
such  proceedings  on  said  date;  that  thereafter,  and  on  or  after 
August  21,  1901,  the  above-named  plaintiff,  the  Disconto  Gesell- 
schaft, was  appointed  a  member  of  the  committee  of  creditors  of 
the  defendant  Terlinden's  personal  estate,  and  accepted  such  ap- 
pointment; and  that  the  above-named  plaintiff,  the  Disconto 
Gesellschaft,  presented  its  claim  to  said  trustee  in  said  bank- 
ruptcy proceedings ;  that  said  claim  had  not  been  allowed  by  said 
trustee  in  January,  1902,  and  there  is  no  evidence  that  it  has 
since  been  allowed ;  that  nothing  has  been  paid  upon  said  claim ; 
that  said  claim  so  presented  and  submitted  is  the  same  claim 
upon  which  action  was  brought  by  the  plaintiff  in  this  court  and 
judgment  given,  as  set  forth  in  finding  No.  1 ;  that  said  action 
was  instituted  by  said  plaintiff,  the  Disconto  Gesellschaft, 
through  the  German  consul  in  Chicago;  and  that  the  steps  so 
taken  by  the  plaintiff,  the  Disconto  Gesellschaft,  had  the  con- 
sent and  approval  of  Dr.  Paul  Kecking  as  trustee  in  Bankruptcy, 
so  appointed  in  the  bankruptcy  proceedings  in  Germany,  and  that 
after  the  commencement  of  the  same  the  plaintiff,  the  Disconto 
Gesellschaft,  agreed  with  said  trustee  that  the  moneys  it  should 
recover  in  said  action  should  form  part  of  the  said  estate  in 
bankruptcy  and  be  handed  over  to  said  trustee ;  that,  among  other 
provisions,  the  German  bankrupt  act  contained  the  following: 
"Sec.  14,  Pending  the  bankruptcy  proceedings,  neither  the  assets 
nor  any  other  property  of  the  bankrupt  are  subject  to  attachment 
or  execution  in  favor  of  individual  creditors." 

Upon  the  facts  thus  found  the  Circuit  Court  rendered  a  judgment 
giving  priority  to  the  levy  of  the  Disconto  Gesellschaft  for  the  satis- 
faction of  its  judgment  out  of  the  fund  attached  in  the  hands  of  the 
bank.  Umbreit  then  appealed  to  the  Supreme  Court  of  Wisconsin. 
That  court  reversed  the  judgment  of  the  Circuit  Court,  and  directed 
judgment  in  favor  of  Umbreit,  that  he  recover  the  sum  garnisheed  in 
the  bank.  127  Wisconsin,  651.  Thereafter  a  remittitur  was  filed  in 


120  DECISIONS  OF  FEDERAL  COURTS 

the  Circuit  Court  of  Milwaukee  County  and  a  final  judgment  rendered 
in  pursuance  of  the  direction  of  the  Supreme  Court  of  Wisconsin. 
This  writ  of  error  is  prosecuted  to  reverse  that  judgment.  At  the 
same  time  a  decree  in  an  equity  suit,  involving  a  fund  in  another  bank, 
was  reversed  and  remanded  to  the  Circuit  Court.  This  case  had  been 
heard,  by  consent,  with  the  attachment  suit.  With  it  we  are  not  con- 
cerned in  this  proceeding. 

No  allegation  of  Federal  rights  appeared  in  the  case  until  the  ap- 
plication for  rehearing.  In  this  application  it  was  alleged  that  the 
effect  of  the  proceedings  in  the  state  court  was  to  deprive  the  plain- 
tiff in  error  of  its  property  without  due  process  of  law,  contrary  to  the 
fourteenth  amendment,  and  to  deprive  it  of  certain  rights  and  privi- 
leges guaranteed  to  it  by  treaty  between  the  Kingdom  of  Prussia  and 
the  United  States.  The  Supreme  Court  of  Wisconsin,  in  passing  upon 
the  petition  for  rehearing  and  denying  the  same,  dealt  only  with  the 
alleged  invasion  of  treaty  rights,  overruling  the  contention  of  the 
plaintiff  in  error.  127  Wisconsin,  676.  It  is  well  settled  in  this  court 
that  it  is  too  late  to  raise  Federal  questions  reviewable  here  by  mo- 
tions for  rehearing  in  the  state  court.  Pirn  v.  St.  Louis,  165  U.  S.  273 ; 
Fullerton  v.  Texas,  196  U.  S.  192 ;  McMillen  v.  Ferrum  Mining  Com- 
pany, 197  U.  S.  343,  347 ;  French  v.  Taylor,  199  U.  S.  274,  278.  An 
exception  to  this  rule  is  found  in  cases  where  the  Supreme  Court  of 
the  State  entertains  the  motion  and  expressly  passes  upon  the  Federal 
question.  Mallett  v.  North  Carolina,  181  U.  S.  589 ;  Leigh  v.  Green, 
193  U.  S.  79. 

Conceding  that  this  record  sufficiently  shows  that  the  Supreme 
Court  heard  and  passed  upon  the  Federal  questions  made  upon  the 
motion  for  rehearing,  we  will  proceed  briefly  to  consider  them. 

The  suit  brought  by  the  Disconto  Gesellschaft  in  attachment  had 
for  its  object  to  subject  the  fund  in  the  bank  in  Milwaukee  to  the 
payment  of  its  claim  against  Terlinden.  The  plaintiff  was  a  German 
corporation  and  Terlinden  was  a  German  subject.  Umbreit,  the  in- 
tervenor,  was  a  citizen  and  resident  of  Wisconsin.  The  Supreme 
Court  of  Wisconsin  adjudged  that  the  fund  attached  could  not  be  sub- 
jected to  the  payment  of  the  indebtedness  due  the  foreign  corporation 
as  against  the  claim  asserted  to  the  fund  by  one  of  its  own  citizens, 
although  that  claim  arose  after  the  attachment  by  the  foreign  creditor; 
and,  further,  that  the  fact  that  the  effect  of  judgment  in  favor  of  the 
foreign  corporation  would  be,  under  the  facts  found,  to  remove  the 
fund  to  a  foreign  country,  there  to  be  administered  in  favor  of  foreign 


DISCONTO  GESELLSCHAFT  v.  UMBREIT  121 

creditors,  was  against  the  public  policy  of  Wisconsin,  which  forbade 
such  discrimination  as  against  a  citizen  of  that  State. 

Alien  citizens,  by  the  policy  and  practice  of  the  courts  of  this  coun- 
try, are  ordinarily  permitted  to  resort  to  the  courts  for  the  redress 
of  wrongs  and  the  protection  of  their  rights.  4  Moore,  International 
Law  Digest,  §  536,  p.  7;  Wharton  on  Conflict  of  Laws,  §  17. 

But  what  property  may  be  removed  from  a  State  and  subjected  to 
the  claims  of  creditors  of  other  States,  is  a  matter  of  comity  between 
nations  and  States  and  not  a  matter  of  absolute  right  in  favor  of 
creditors  of  another  sovereignty,  when  citizens  of  the  local  State  or 
country  are  asserting  rights  against  property  within  the  local  juris- 
diction. 

"  'Comity,'  in  the  legal  sense,"  says  Mr.  Justice  Gray,  speaking  for 
this  court  in  Hilton  v.  Guyot,  159  U.  S.  113,  163,  "is  neither  a  matter 
of  absolute  obligation  on  the  one  hand  nor  of  mere  courtesy  and 
good  will  upon  the  other.  But  it  is  the  recognition  which  one  nation 
allows  in  its  territory  to  the  legislative,  executive  or  judicial  acts  of 
another  nation,  having  due  regard  both  to  international  duty  and  con- 
venience, and  to  the  rights  of  its  own  citizens  or  of  other  persons  who 
are  under  the  protection  of  its  laws." 

In  the  elaborate  examination  of  the  subject  in  that  case  many  cases 
are  cited  and  the  writings  of  leading  authors  on  the  subject  exten- 
sively quoted  as  to  the  nature,  obligation  and  extent  of  comity  be- 
tween nations  and  States.  The  result  of  the  discussion  shows  that 
how  far  foreign  creditors  will  be  protected  and  their  rights  enforced 
depends  upon  the  circumstances  of  each  case,  and  that  all  civilized 
nations  have  recognized  and  enforced  the  doctrine  that  international 
comity  does  not  require  the  enforcement  of  judgment  in  such  wise  as 
to  prejudice  the  rights  of  local  creditors  and  the  superior  claims  of 
such  creditors  to  assert  and  enforce  demands  against  property  within 
the  local  jurisdiction.  Such  recognition  is  not  inconsistent  with  that 
moral  duty  to  respect  the  rights  of  foreign  citizens  which  inheres  in 
the  law  of  nations.  Speaking  of  the  doctrine  of  comity,  Mr.  Justice 
Story  says:  "Every  nation  must  be  the  final  judge  for  itself,  not  only 
of  the  nature  and  extent  of  the  duty,  but  of  the  occasion  on  which  its 
exercises  may  be  justly  demanded."  Story  on  Conflict  of  Laws,  §  33. 

The  doctrine  of  comity  has  been  the  subject  of  frequent  discussion 
in  the  courts  of  this  country  when  it  has  been  sought  to  assert  rights 
accruing  under  assignments  for  the  benefit  of  creditors  in  other  States 


122  DECISIONS  OF  FEDERAL  COURTS 

as  against  the  demands  of  local  creditors,  by  attachment  or  otherwise 
in  the  State  where  the  property  is  situated.  The  cases  were  reviewed 
by  Mr.  Justice  Brown,  delivering  the  opinion  of  the  court  in  Security 
Trust  Company  v.  Dodd,  Mead  &  Co.,  173  U.  S.  624,  and  the  conclu- 
sion reached  that  voluntary  assignments  for  the  benefit  of  creditors 
should  be  given  force  in  other  States  as  to  property  therein  situate, 
except  so  far  as  they  come  in  conflict  with  the  rights  of  local  creditors, 
or  with  the  public  policy  of  the  State  in  which  it  is  sought  to  be  en- 
forced ;  and,  as  was  said  by  Mr.  Justice  McLean  in  Oakey  v.  Bennett, 
11  How.  33,  44,  "national  comity  does  not  require  any  Government 
to  give  effect  to  such  assignment  [for  the  benefit  of  creditors]  when 
it  shall  impair  the  remedies  or  lessen  the  securities  of  its  own  citizens." 

There  being,  then,  no  provision  of  positive  law  requiring  the  recog- 
nition of  the  right  of  the  plaintiff  in  error  to  appropriate  property  in 
the  State  of  Wisconsin  and  subject  it  to  distribution  for  the  benefit 
of  foreign  creditors  as  against  the  demands  of  local  creditors,  how 
far  the  public  policy  of  the  State  permitted  such  recognition  was  a 
matter  for  the  State  to  determine  for  itself.  In  determining  that  the 
policy  of  Wisconsin  would  not  permit  the  property  to  be  thus  appro- 
priated to  the  benefit  of  alien  creditors  as  against  the  demands  of  the 
citizens  of  the  State,  the  Supreme  Court  of  Wisconsin  has  done  no 
more  than  has  been  frequently  done  by  nations  and  States  in  refusing 
to  exercise  the  doctrine  of  comity  in  such  wise  as  to  impair  the  right 
of  local  creditors  to  subject  local  property  to  their  just  claims.  We 
fail  to  perceive  how  this  application  of  a  well  known  rule  can  be  said 
to  deprive  the  plaintiff  in  error  of  its  property  without  due  process  of 
law. 

Upon  the  motion  for  rehearing  the  plaintiff  in  error  called  attention 
to  two  alleged  treaty  provisions  between  the  United  States  and  the 
Kingdom  of  Prussia,  the  first  from  the  treaty  of  1828,  and  the  second 
from  the  treaty  of  1799.  As  to  the  last  mentioned  treaty  the  follow- 
ing provision  [Art.  7]  was  referred  to : 

Each  party  shall  endeavor  by  all  the  means  in  their  power  to 
protect  and  defend  all  vessels  and  other  effects,  belonging  to  the 
citizens  or  subjects  of  the  other,  which  shall  be  within  the  extent 
of  their  jurisdiction  by  sea  or  by  land;  .  .  . 

The  treaty  of  1799  expired  by  its  own  terms  on  June  2,  1810,  and 
the  provision  relied  upon  is  not  set  forth  in  so  much  of  the  treaty  as 


DISCONTO  GESELLSCHAFT  v.  UMBREIT  123 

was  revived  by  Article  12  of  the  treaty  of  May  1,  1828.  See  Com- 
pilation of  Treaties  in  Force,  1904,  prepared  under  resolution  of  the 
Senate,  pp.  638  et  seq.  If  this  provision  of  the  treaty  of  1799  were 
in  force  we  are  unable  to  see  that  it  has  any  bearing  upon  the  present 
case. 

Article  1  of  the  treaty  of  1828  between  the  Kingdom  of  Prussia 
and  the  United  States  is  as  follows: 

There  shall  be  between  the  territories  of  the  high  contracting 
parties  a  reciprocal  liberty  of  commerce  and  navigation.  The  in- 
habitants of  their  respective  States  shall  mutually  have  liberty  to 
enter  the  ports,  places,  and  rivers  of  the  territories  of  each  party, 
wherever  foreign  commerce  is  permitted.  They  shall  be  at  lib- 
erty, to  sojourn  and  reside  in  all  parts  whatsoever  of  said  terri- 
tories, in  order  to  attend  to  their  affairs;  and  they  shall  enjoy, 
to  that  effect,  the  same  security  and  protection  as  natives  of  the 
country  wherein  they  reside,  on  condition  of  their  submitting  to 
the  laws  and  ordinances  there  prevailing. 

This  treaty  is  printed  as  one  of  the  treaties  in  force  in  the  compila- 
tion of  1904,  p.  643,  and  has  undoubtedly  been  recognized  by  the 
two  Governments  as  still  in  force  since  the  formation  of  the  German 
Empire.  See  Terlinden  v.  Ames,  184  U.  S.  270;  Foreign  Relations  of 
1883,  p.  369;  Foreign  Relations  of  1885,  pp.  404,  443,  444;  Foreign 
Relations  of  1887,  p.  370;  Foreign  Relations  of  1895,  part  one,  539. 

Assuming,  then,  that  this  treaty  is  still  in  force  between  the  United 
States  and  the  German  Empire,  and  conceding  the  rule  that  treaties 
should  be  liberally  interpreted  with  a  view  to  protecting  the  citizens 
of  the  respective  countries  in  rights  thereby  secured,  is  there  any- 
thing in  this  article  which  required  any  different  decision  in  the  Su- 
preme Court  of  Wisconsin  than  that  given?  The  inhabitants  of  the 
respective  countries  are  to  be  at  liberty  to  sojourn  and  reside  in  all 
parts  whatsoever  of  said  territories  in  order  to  attend  to  their  affairs, 
and  they  shall  enjoy,  to  that  effect,  the  same  security  and  protection 
as  the  natives  of  the  country  wherein  they  reside,  upon  submission  to 
the  laws  and  ordinances  there  prevailing.  It  requires  very  great  in- 
genuity to  perceive  anything  in  this  treaty  provision  applicable  to  the 
present  case.  It  is  said  to  be  found  in  the  right  of  citizens  of  Prussia 
to  attend  to  their  affairs  in  this  country.  The  treaty  provides  that  for 
that  purpose  they  are  to  have  the  same  security  and  protection  as 
natives  in  the  country  wherein  they  reside.  Even  between  States  of 


124  DECISIONS  OF  FEDERAL  COURTS 

the  American  Union,  as  shown  in  the  opinion  of  Mr.  Justice  Brown  in 
Security  Trust  Co.  v.  Dodd,  Mead  &  Co.,  173  U.  S.  supra,  it  has  been 
the  constant  practice  not  to  recognize  assignments  for  the  benefit  of 
creditors  outside  the  State,  where  the  same  came  in  conflict  with  the 
rights  of  domestic  creditors  seeking  to  recover  their  debts  against 
local  property.  This  is  the  doctrine  in  force  as  against  natives  of  the 
country  residing  in  other  States,  and  it  is  this  doctrine  which  has  been 
applied  by  the  Supreme  Court  of  Wisconsin  to  foreign  creditors  re- 
siding in  Germany.  In  short,  there  is  nothing  in  this  treaty  under- 
taking to  change  the  well  recognized  rule  between  States  and  nations 
which  permits  a  country  to  first  protect  the  rights  of  its  own  citizens 
in  local  property  before  permitting  it  to  be  taken  out  of  the  jurisdic- 
tion for  administration  in  favor  of  those  residing  beyond  their  borders. 
The  judgment  of  the  Circuit  Court  of  Milwaukee  County  entered 
upon  the  remittitur  from  the  Supreme  Court  of  Wisconsin  is 

Affirmed. 


THE  STEAMSHIP  APPAM1 

APPEALS  FROM  THE  DISTRICT  COURT  OF  THE  UNITED  STATES  FOR  THE 
EASTERN  DISTRICT  OF  VIRGINIA 

Nos.  650,  722.    Argued  January  15,  16,  1917.— Decided  March  6,  1917. 

The  British  merchant  steamship  Appam,  captured  on  the  high  seas  by  a  German 
cruiser  and  navigated  to  a  port  of  the  United  States  in  control  of  German 
officers  and  crew,  during  the  war  between  Great  Britain  and  Germany,  is 
held  to  have  been  brought  here  as  a  prize. 

Under  the  principles  of  international  law,  as  recognized  by  our  government  since 
an  early  day  in  its  history  and  as  emphasized  in  its  attitude  in  the  Hague 
Conference  of  1907,  it  is  a  clear  breach  of  our  neutral  rights  for  one  of 
two  belligerent  governments,  with  both  of  which  we  are  at  peace,  to  make 
use  of  our  ports  for  the  indefinite  storing  and  safe-keeping  of  prizes  cap- 
tured from  its  adversary  on  the  high  seas. 

Failure  of  our  government  to  issue  a  proclamation  on  the  subject  will  not 
warrant  the  use  of  our  ports  to  store  prizes  indefinitely,  and  certainly  not 
where  the  possibility  of  removal  depends  upon  recruiting  crews  in  violation 
of  our  established  rules  of  neutrality. 


1 243  U.  S.  Reports,  122 ;  October  term,  1916.  The  docket  titles  of  these  cases 
are :  No.  640,  Hans  Berg,  Prize  Master  in  charge  of  the  Prize  Ship  "Appam,"  and 
L.  M.  von  Schilling,  Vice-Consul  of  the  German  Empire,  Appellants,  v.  British 
&  African  Steam  Navigation  Co.;  No.  722,  Same  v.  Henry  G.  Harrison,  Master 
of  the  steamship  "Appam."  For  the  diplomatic  correspondence  and  the  decision 
of  the  German  prize  court,  see  post,  p.  200. 


THE  STEAMSHIP  APPAM  125 

The  Treaty  with  Prussia  of  1799,  8  Stat.  172,  173,  Article  19,  makes  no  pro- 
vision for  indefinite  stay  of  vessels,  and  includes  prizes  only  when  in  charge 
of  vessels  of  war. 

The  violation  of  neutrality  committed  by  a  belligerent  in  wrongfully  making 
use  of  one  of  our  ports  for  storing  indefinitely  a  merchant  vessel  and  cargo 
captured  on  the  righ  seas,  affords  jurisdiction'  in  admiralty  to  the  United 
States  District  Court  of  the  locality  to  seize  the  vessel  and  cargo  and  re- 
store them  to  their  private  owners. 

In  such  case,  proceedings  in  a  prize  court  of  the  belligerent  country  could  not 
oust  the  jurisdiction  of  the  District  Court  having  the  vessel  in  custody  or 
defeat  its  judgment 

234  Fed.  Rep.  389,  affirmed. 

Mr.  Justice  DAY  delivered  the  opinion  of  the  court. 

These  are  appeals  from  the  District  Court  of  the  United  States  for 
the  Eastern  District  of  Virginia,  in  two  admiralty  cases.  No.  650 
was  brought  by  the  British  &  African  Steam  Navigation  Company, 
Limited,  owner  of  the  British  steamship,  Appam,  to  recover  posses- 
sion of  that  vessel.  No.  722  was  a  suit  by  the  master  of  the  Appam  to 
recover  possession  of  the  cargo.  In  each  of  the  cases  the  decree  was 
in  favor  of  the  libellant. 

The  facts  are  not  in  dispute  and  from  them  it  appears :  That  during 
the  existence  of  the  present  war  between  Great  Britain  and  Germany, 
on  the  15th  day  of  January,  1916,  the  steamship  Appam  was  captured 
on  the  high  seas  by  the  German  cruiser  Moewe.  The  Appam  was  a 
ship  under  the  British  flag,  registered  as  an  English  vessel,  and  is  a 
modern  cargo  and  passenger  steamship  of  7800  tons  burden.  At  the 
time  of  her  capture  she  was  returning  from  the  West  Coast  of  Africa 
to  Liverpool,  carrying  a  general  cargo  of  cocoa  beans,  palm  oil,  ker- 
nels, tin,  maize,  sixteen  boxes  of  specie,  and  some  other  articles.  At 
the  West  African  port  she  took  on  170  passengers,  eight  of  whom 
mere  military  prisoners  of  the  English  Government.  She  had  a 
crew  of  160  or  thereabouts,  and  carried  a  three-pound  gun  at  the 
stern.  The  Appam  was  brought  to  by  a  shot  across  her  bows  from  the 
Moewe,  when  about  a  hundred  yards  away,  and  was  boarded  without 
resistance  by  an  armed  crew  from  the  Moewe.  This  crew  brought 
with  them  two  bombs,  one  of  which  was  slung  over  the  bow  and  the 
other  over  the  stern  of  the  Appam.  An  officer  from  the  Moewe  said 
to  the  captain  of  the  Appam  that  he  was  sorry  he  had  to  take  his  ship, 
asked  him  how  many  passengers  he  had,  what  cargo,  whether  he  had 


126  DECISIONS  OF  FEDERAL  COURTS 

any  specie,  and  how  much  coal.  When  the  shot  was  fired  across  the 
bows  of  the  Appam,  the  captain  instructed  the  wireless  operator  not 
to  touch  the  wireless  instrument,  and  his  officers  not  to  let  any  one 
touch  the  gun  on  board.  The  officers  and  crew  of  the  Appam,  with 
the  exception  of  the  engine-  room  force,  thirty-five  in  number,  and  the 
second  officer,  were  ordered  on  board  the  Moewe.  The  captain,  offi- 
cers and  crew  of  the  Appam  were  sent  below,  where  they  were  held 
until  the  evening  of  the  17th  of  January,  when  they  and  about  150 
others,  officers  and  crews  of  certain  vessels  previously  sunk  by  the 
Moewe,  were  ordered  back  to  the  Appam  and  kept  there  as  prisoners. 
At  the  time  of  the  capture,  the  senior  officer  of  the  boarding  party 
told  the  chief  engineer  of  the  Appam  he  was  now  a  member  of  the 
German  navy;  if  he  did  not  obey  orders  his  brains  would  be  blown 
out,  but  if  he  obeyed,  not  a  hair  of  his  head  should  be  touched.  The 
Appam 's  officer  was  instructed  to  tell  his  staff  the  same  thing,  and  if 
they  did  not  obey  orders  they  would  be  brought  to  the  German  officer 
and  shot.  Inquiries  were  made  by  the  German  officer  in  command  of 
the  Appam  as  to  revolutions  of  the  engines,  the  quantity  of  coal  on 
hand  and  the  coal  consumption  for  different  speeds,  and  instructions 
were  given  that  steam  be  kept  up  handy,  and  afterwards  the  engi- 
neer was  directed  to  set  the  engines  at  the  revolutions  required,  and 
the  ship  got  under  way. 

Lieutenant  Berg,  who  was  the  German  officer  in  command  of  the 
Appam  after  its  capture,  told  the  engineer  on  the  second  morning  that 
he  was  then  in  charge  of  the  ship,  asked  of  him  information  as  to  fuel 
consumption,  and  said  that  he  expected  the  engineer  to  help  him  all  he 
could,  and  the  more  he  did  for  him  the  better  it  would  be  for  every- 
body on  the  ship.  The  engineer  said  he  would,  and  did  so.  The  en- 
gines were  operated  with  a  bomb  secured  to  the  port  main  injector 
valve,  and  a  German  sailor  stationed  alongside  the  bomb  with  a  re- 
volver. There  was  a  guard  below  of  four  or  five  armed  Germans, 
who  were  relieved  from  time  to  time,  but  did  not  interfere  with  the 
working  of  the  ship.  The  German  officer,  Lieutenant  Berg,  gave  di- 
rections as  to  working  the  engines,  and  was  the  only  officer  on  board 
who  wore  a  uniform. 

On  the  night  of  the  capture,  the  specie  in  the  specie-room  was  taken 
on  board  the  Moewe.  After  Lieutenant  Berg  took  charge  of  the 
Appam,  bombs  were  slung  over  her  bow  and  stern,  one  large  bomb, 
said  to  contain  about  two  hundred  pounds  of  explosive,  was  placed 


THE  STEAMSHIP  APPAM  127 

on  the  bridge,  and  several  smaller  ones  in  the  chart  room.  Lieutenant 
Berg  informed  the  captain  of  the  Appam,  pointing  to  one  of  the 
bombs,  "That  is  a  bomb;  if  there  is  any  trouble,  mutiny,  or  attempt  to 
take  the  ship,  I  have  orders  to  blow  up  the  ship  instantly."  He  also 
said,  "There  are  other  bombs  about  the  ship;  I  do  not  want  to  use 
them,  but  I  shall  be  compelled  to  if  there  is  any  trouble."  The  bombs 
were  kept  in  the  positions  stated  until  the  ship  arrived  at  the  Virginia 
Capes,  when  they  were  removed.  Lieutenant  Berg,  on  reaching 
Hampton  Roads,  asked  the  crew  of  the  Appam  to  drop  the  anchor, 
as  he  had  not  men  to  do  it. 

During  the  trip  to  the  westward,  the  officers  and  crew  of  the  Ap- 
pam were  not  allowed  to  see  the  ship's  compass  to  ascertain  her  course, 
and  all  lights  were  obscured  during  the  voyage.  The  German  pris- 
oners, with  the  exception  of  two  who  went  on  board  the  Mo  ewe,  were 
armed  and  placed  over  the  passengers  and  crew  of  the  Appam  as  a 
guard  all  the  way  across.  For  two  days  after  the  capture,  the  Appam 
remained  in  the  vicinity  of  the  Moewe,  and  then  was  started  west- 
ward. Her  course  for  the  first  two  or  three  days  was  southwesterly, 
and  afterwards  westerly,  and  was  continued  until  her  arrival  at  the 
Virginia  Capes  on  the  31st  of  January.  The  engine  room  staff  of  the 
Appam  was  on  duty  operating  the  vessel  across  to  the  United  States ; 
the  deck  crew  of  the  Appam  kept  the  ship  clean,  and  the  navigation 
was  conducted  entirely  by  the  Germans,  the  lookouts  being  mostly 
German  prisoners. 

At  the  time  of  the  capture,  the  Appam  was  approximately  distant 
1,590  miles  from  Emden,  the  nearest  German  port;  from  the  nearest 
available  port,  namely,  Punchello,  in  the  Madeiras,  130  miles;  from 
Liverpool,  1,450  miles;  and  from  Hampton  Roads,  3,051  miles.  The 
Appam  was  found  to  be  in  first  class  order,  seaworthy,  with  plenty  of 
provisions,  both  when  captured  and  at  the  time  of  her  arrival  in 
Hampton  Roads. 

The  order  or  commission  delivered  to  Lieutenant  Berg  by  the  com- 
mander of  the  Moewe  is  as  follows : 

Information  for  the  American  Authorities.  The  bearer  of  this, 
Lieutenant  of  the  Naval  Reserve,  Berg,  is  appointed  by  me  to 
the  command  of  the  captured  English  steamer  Appam  and  has 
orders  to  bring  the  ship  into  the  nearest  American  harbor  and 
there  to  lay  up.  Kommando  S.  M.  H.  Moewe.  Count  Zu  Dohna, 
Cruiser  Captain  and  Commander.  (Imperial  Navy  Stamp.) 
Kommando  S.  M.  S.  Moewe. 


128  DECISIONS  OF  FEDERAL  COURTS 


Upon  arrival  in  Hampton  Roads,  Lieutenant  Berg  reported  his  ar- 
rival to  the  Collector,  and  filed  a  copy  of  his  instructions  to  bring  the 
Appam  into  the  nearest  American  port  and  there  to  lay  up. 

On  February  2nd,  his  Excellency,  the  German  Ambassador,  in- 
formed the  State  Department  of  the  intention,  under  alleged  treaty 
rights,  to  stay  in  an  American  port  until  further  notice,  and  requested 
that  the  crew  of  the  Appam  be  detained  in  the  United  States  for  the 
remainder  of  the  war. 

The  prisoners  brought  in  by  the  Appam  were  released  by  order  of 
the  American  Government. 

On  February  16th,  and  sixteen  days  after  the  arrival  of  the  Appam 
in  Hampton  Roads,  the  owner  of  the  Appam  filed  the  libel  in  case 
No.  650,  to  which  answer  was  filed  on  March  3rd.  On  March  7th,  by 
leave  of  court,  an  amended  libel  was  filed,  by  which  the  libellant 
sought  to  recover  the  Appam  upon  the  claim  that  holding  and  detain- 
ing the  vessel  in  American  waters  was  in  violation  of  the  law  of 
nations  and  the  laws  of  the  United  States  and  of  the  neutrality  of  the 
United  States.  The  answer  of  the  respondents  to  the  amended  libel 
alleged  that  the  Appam  was  brought  in  as  a  prize  by  a  prize  master, 
in  reliance  upon  the  Treaty  of  1799  between  the  United  States  and 
Prussia;  that  by  the  general  principles  of  international  law  the  prize 
master  was  entitled  to  bring  his  ship  into  the  neutral  port  under  these 
circumstances,  and  that  the  length  of  stay  was  not  a  matter  for  judicial 
determination;  and  that  proceedings  had  been  instituted  in  a  proper 
prize  court  of  competent  jurisdiction  in  Germany  for  the  condemna- 
tion of  the  Appam  as  a  prize  of  war;  and  averred  that  the  American 
•court  had  no  jurisdiction. 

The  libel  against  the  Appam's  cargo  was  filed  on  March  13th,  1916. 
and  answer  filed  on  March  31st.  During  the  progress  of  the  case, 
libellant  moved  the  court  to  sell  a  part  of  the  cargo  as  perishable;  on 
motion  the  court  appointed  surveyors,  who  examined  the  cargo  and 
reported  that  the  parts  so  designated  as  perishable  should  be  sold; 
upon  their  report  orders  of  sale  were  entered,  under  which  such  per- 
ishable parts  were  sold,  and  the  proceeds  of  that  sale,  amounting  to 
over  $600,000,  are  now  in  the  registry  of  the  court,  and  the  unsold 
portions  of  the  cargo  are  now  in  the  custody  of  the  marshal  of  the 
Eastern  District  of  Virginia. 

The  argument  in  this  case  has  taken  wide  range,  and  orally  and  in 


THE  STEAMSHIP  APPAM  129 

printed  briefs  counsel  have  discussed  many  questions  which  we  do 
not  consider  necessary  to  decide  in  determining  the  rights  involved 
in  these  appeals. 

From  the  facts  which  we  have  stated,  we  think  the  decisive  ques- 
tions resolve  themselves  into  three :  First,  was  the  use  of  an  American 
port,  under  the  circumstances  shown,  a  breach  of  this  Nation's  neu- 
trality under  the  principles  of  international  law?  Second,  was  such 
use  of  an  American  port  justified  by  the  existing  treaties  between  the 
German  Government  and  our  own?  Third,  was  there  jurisdiction  and 
right  to  condemn  the  Appam  and  her  cargo  in  a  court  of  admiralty  of 
the  United  States? 

It  is  familiar  international  law  that  the  usual  course  after  the  cap- 
ture of  the  Appam  would  have  been  to  take  her  into  a  German  port, 
where  a  prize  court  of  that  nation  might  have  adjudicated  her  status, 
and,  if  it  so  determined,  condemned  the  vessel  as  a  prize  of  war. 
Instead  of  that,  the  vessel  was  neither  taken  to  a  German  port,  nor  to 
the  nearest  port  accessible  of  a  neutral  power,  but  was  ordered  to,  and 
did,  proceed  over  a  distance  of  more  than  three  thousand  miles,  with 
a  view  to  laying  up  the  captured  ship  in  an  American  port. 

It  was  not  the  purpose  to  bring  the  vessel  here  within  the  privileges 
universally  recognized  in  international  law,  i.  e.,  for  necessary  fuel  or 
provisions,  or  because  of  stress  of  weather  or  necessity  of  repairs, 
and  to  leave  as  soon  as  the  cause  of  such  entry  was  satisfied  or  re- 
moved. The  purpose  for  which  the  Appam  was  brought  to  Hampton 
Roads,  and  the  character  of  the  ship,  are  emphasized  in  the  order 
which  we  have  quoted  to  take  her  to  an  American  port  and  there  lay 
her  up  and  in  a  note  from  his  Excellency,  the  German  Ambassador, 
to  the  Secretary  of  State,  in  which  the  right  was  claimed  to  keep  the 
vessel  in  an  American  port  until  further  notice.  (Diplomatic  Cor- 
respondence with  Belligerent  Governments  Relating  to  Neutral  Rights 
and  Duties,  Department  of  State,  European  War  No.  3,  page  331,) 
and  a  further  communication  from  the  German  Ambassador  forward- 
ing a  memorandum  of  a  telegram  from  the  German  Government  con- 
cerning the  Appam  (id.  page  333),  in  which  it  was  stated: 

Appam  is  not  an  auxiliary  cruiser  but  a  prize.  Therefore  she 
must  be  dealt  with  according  to  Article  19  of  the  Prusso- Ameri- 
can treaty  of  1799.  Article  21  of  Hague  Convention  concerning 
neutrality  at  sea  is  not  applicable,  as  this  convention  was  not  rati- 
fied by  England  and  is  therefore  not  binding  in  present  war 


130  DECISIONS  OF  FEDERAL  COURTS 

according  to  Article  28.  The  above-mentioned  Article  19  author- 
izes a  prize  ship  to  remain  in  American  ports  as  long  as  she 
pleases.  Neither  the  ship  nor  the  prize  crew  can  therefore  be 
interned  nor  can  there  be  question  of  turning  the  prize  over  to 
English. 

In  view  of  these  facts,  and  this  attitude  of  the  Imperial  Government 
of  Germany,  it  is  manifest  that  the  Appam  was  not  brought  here  in 
any  other  character  than  as  a  prize,  captured  at  sea  by  a  cruiser  of  the 
German  navy,  and  that  the  right  to  keep  her  here,  as  shown  in  the 
attitude  of  the  German  Government  and  in  the  answer  to  the  libel, 
was  rested  principally  upon  the  Prussian- American  Treaty  of  1799. 

The  principles  of  international  law  recognized  by  this  Government, 
leaving  the  treaty  aside,  will  not  permit  the  ports  of  the  United  States 
to  be  thus  used  by  belligerents.  If  such  use  were  permitted,  it  would 
constitute  of  the  ports  of  a  neutral  country  harbors  of  safety  into 
which  prizes,  captured  by  one  of  the  belligerents,  might  be  safely 
brought  and  indefinitely  kept. 

From  the  beginning  of  its  history  this  country  has  been  careful  to 
maintain  a  neutral  position  between  warring  Governments,  and  not 
to  allow  the  use  of  its  ports  in  violation  of  the  obligations  of  neutral- 
ity; nor  to  permit  such  use  beyond  the  necessities  arising  from  the 
perils  of  the  seas  or  the  necessities  of  such  vessels  as  to  seaworthi- 
ness, provisions  and  supplies.  Such  usage  has  the  sanction  of  inter- 
national law,  Dana's  Note  to  Wheaton  on  International  Law,  1866, 
8th  American  Edition,  Section  391,  and  accords  with  our  own  prac- 
tice. Moore's  Digest  of  International  Law,  Vol.  7,  936,  937,  938. 

A  policy  of  neutrality  between  warring  nations  has  been  maintained 
from  1793  to  this  time.  In  that  year  President  Washington  firmly 
denied  the  use  of  our  ports  to  the  French  Minister  for  the  fitting  out 
of  privateers  to  destroy  English  commerce.  This  attitude  led  to  the 
enactment  of  the  Neutrality  Act  of  1794,  afterwards  embodied  in  the 
act  of  1818,  enacting  a  code  of  neutrality,  which  among  other  things 
inhibited  the  fitting  out  and  arming  of  vessels;  the  augmenting  or 
increasing  of  the  force  of  armed  vessels ;  or  the  setting  on  foot  in  our 
territory  of  military  expeditions ;  and  empowering  the  President  to 
order  foreign  vessels  of  war  to  depart  from  our  ports  and  compelling 
them  so  to  do  when  required  by  the  law  of  nations.  Moore  on  Inter- 
national Arbitrations,  v.  4,  3967  et  seq. 


THE  STEAMSHIP  APPAM  131 

This  policy  of  the  American  Government  was  emphasized  in  its 
attitude  at  the  Hague  Conference  of  1907.  Article  21  of  the  Hague 
Treaty  provides: 

A  prize  may  only  be  brought  into  a  neutral  port  on  account 
of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

It  must  leave  as  soon  as  the  circumstances  which  justified  its 
entry  are  at  an  end.  If  it  does  not,  the  neutral  Power  must  order 
it  to  leave  at  once ;  should  it  fail  to  obey,  the  neutral  Power  must 
employ  the  means  at  its  disposal  to  release  it  with  its  officers  and 
crew  and  to  intern  the  prize  crew. 

Article  22  provides: 

A  neutral  Power  must,  similarly,  release  a  prize  brought  into 
one  of  its  ports  under  circumstances  other  than  those  referred 
to  in  Article  21. 

To  these  articles,  adherence  was  given  by  Belgium,  France,  Austria- 
Hungary,  Germany,  the  United  States,  and  a  number  of  other  nations. 
They  were  not  ratified  by  the  British  Government.  This  Government 
refused  to  adhere  to  Article  23,  which  provides : 

A  neutral  Power  may  allow  prizes  to  enter  its  ports  and  road- 
steads, whether  under  convoy  or  not,  when  they  are  brought  there 
to  be  sequestrated  pending  the  decision  of  a  Prize  court.  It  may 
have  the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go 
on  board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  ar 
liberty. 

And  in  the  proclamation  of  the  convention  the  President  recited  the' 
resolution  of  the  Senate  adhering  to  it, 

subject  to  the  reservation  and  exclusion  of  its  Article  23  and 
with  the  understanding  that  the  last  clause  of  Article  3  thereof 
implies  the  duty  of  a  neutral  Power  to  make  the  demand  therein 
mentioned  for  the  return  of  a  ship  captured  within  the  neutral 
jurisdiction  and  no  longer  within  that  jurisdiction.  36  Stat.,  Pt. 
II,  p.  2438. 

While  this  treaty  may  not  be  of  binding  obligation,  owing  to  lack 
of  ratification,  it  is  very  persuasive  as  showing  the  attitude  of  the 


132  DECISIONS  OF  FEDERAL  COURTS 

American  Government  when  the  question  is  one  of  international  law; 
from  which  it  appears  clearly  that  prizes  could  only  be  brought  into 
our  ports  upon  general  principles  recognized  in  international  law,  on 
account  of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions, and  we  refused  to  recognize  the  principle  that  prizes  might 
enter  our  ports  and  roadsteads,  whether  under  convoy  or  not,  to  be 
sequestrated  pending  the  decision  of  a  prize  court.  From  the  history 
of  the  conference  it  appears  that  the  reason  for  the  attitude  of  the 
American  delegates  in  refusing  to  accept  Article  23  was  that  thereby 
a  neutral  might  be  involved  in  participation  in  the  war  to  the  extent 
of  giving  asylum  to  a  prize  which  the  belligerent  might  not  be  able 
to  conduct  to  a  home  port.  See  Scott  on  Peace  Conferences,  1899- 
1907,  Vol.  II,  p.  237  et  seq. 

Much  stress  is  laid  upon  the  failure  of  this  Government  to  proclaim 
that  its  ports  were  not  open  to  the  reception  of  captured  prizes,  and 
it  is  argued  that  having  failed  to  interdict  the  entrance  of  prizes  into 
our  ports  permission  to  thus  enter  must  be  assumed.  But  whatever 
privilege  might  arise  from  this  circumstance  it  would  not  warrant  the 
attempted  use  of  one  of  our  ports  as  a  place  in  which  to  store  prizes 
indefinitely,  and  certainly  not  where  no  means  of  taking  them  out  are 
shown  except  by  the  augmentation  of  her  crew,  which  would  be  a  clear 
violation  of  established  rules  of  neutrality. 

As  to  the  contention  on  behalf  of  the  appellants  that  Article  19 
of  the  Treaty  of  1799  justifies  bringing  in  and  keeping  the  Appam 
in  an  American  port,  in  the  situation  which  we  have  outlined,  it  ap- 
pears that  in  response  to  a  note  from  his  Excellency,  the  German 
Ambassador,  making  that  contention,  the  American  Secretary  of  State, 
•considering  the  treaty,  announced  a  different  conclusion  (Diplomatic 
Correspondence  with  Belligerent  Governments,  supra,  page  335  et  seq.)  ; 
and  we  think  this  view  is  justified  by  a  consideration  of  the  terms  of 
the  treaty.  Article  19  of  the  treaty  of  1799,  using  the  translation 
adopted  by  the  American  State  Department,  reads  as  follows: 

The  vessels  of  war,  public  and  private,  of  both  parties,  shall 
carry  (conduire)  freely,  wheresoever  they  please,  the  vessels  and 
effects  taken  (pris)  from  their  enemies,  without  being  obliged  to 
pay  any  duties,  charges,  or  fees  to  officers  of  admiralty,  of  the 
customs,  or  any  others;  nor  shall  such  prizes  (prises)  be  ar- 
rested, searched  or  put  under  legal  process,  when  they  come  to 
and  enter  the  ports  of  the  other  party,  but  may  freely  be  car- 


THE  STEAMSHIP  APPAM  133 

ried  (conduites)  out  again  at  any  time  by  their  captors  (/*» 
vaisseau  preneur)  to  the  places  expressed  in  their  commissions, 
which  the  commanding  officer  of  such  vessel  (le  dit  vaisseau) 
shall  be  obliged  to  show.  [But  conformably  to  the  treaties  ex- 
isting between  the  United  States  and  Great  Britain,  no  vessel 
(vaisseau)  that  shall  have  made  a  prize  (prise)  upon  British 
subjects  shall  have  a  right  to  shelter  in  the  ports  of  the  United 
States,  but  if  (il  est)  forced  therein  by  tempests,  or  any  other 
danger  or  accident  of  the  sea,  they  (il  sera)  shall  be  obliged  to 
depart  as  soon  as  possible.]  (The  provision  concerning  the 
treaties  between  the  United  States  and  Great  Britain  is  no  longer 
in  force,  having  been  omitted  by  the  treaty  of  1828.  See  Com- 
pilation of  Treaties  in  Force,  1904,  pages  641  and  646.) 

We  think  an  analysis  of  this  article  makes  manifest  that  the  per- 
mission granted  is  to  vessels  of  war  and  their  prizes,  which  are  not 
to  be  arrested,  searched,  or  put  under  legal  process,  when  they  come 
into  the  ports  of  the  high  contracting  parties,  to  the  end  that  they  may 
be  freely  carried  out  by  their  captors  to  the  places  expressed  in  their 
commissions,  which  the  commanding  officer  is  obliged  to  show.  When 
the  Appam  came  into  the  American  harbor  she  was  not  in  charge  of  a 
vessel  of  war  of  the  German  Empire.  She  was  a  merchant  vessel, 
captured  on  the  high  seas  and  sent  into  the  American  port  with  the 
intention  of  being  kept  there  indefinitely,  and  without  any  means  of 
leaving  that  port  for  another  as  contemplated  in  the  treaty,  and  re- 
quired to  be  shown  in  the  commission  of  the  vessel  bringing  in  the 
prize.  Certainly  such  use  of  a  neutral  port  is  very  far  from  that  con- 
templated by  a  treaty  which  made  provision  only  for  temporary  asy- 
lum for  certain  purposes,  and  can  not  be  held  to  imply  an  intention 
to  make  of  an  American  port  a  harbor  of  refuge  for  captured  prizes 
of  a  belligerent  Government.  We  can  not  avoid  the  conclusion  that  in 
thus  making  use  of  an  American  port  there  was  a  clear  breach  of  the 
neutral  rights  of  this  Government,  as  recognized  under  principles  of 
international  law  governing  the  obligations  of  neutrals,  and  that  such 
use  of  one  of  our  ports  was  in  no  wise  sanctioned  by  the  treaty  of 
1799. 

It  remains  to  inquire  whether  there  was  jurisdiction  and  authority 
in  an  Admiralty  Court  of  the  United  States,  under  these  circumstances, 
to  order  restoration  to  an  individual  owner  of  the  vessel  and  cargo. 

The  earliest  authority  upon  this  subject  in  the  decisions  of  this 
court  is  found  in  the  case  of  Glass  v.  The  Sloop  Betsy,  3  Dallas,  6, 


134  DECISIONS  OF  FEDERAL  COURTS 

decided  in  1794,  wherein  it  appeared  that  the  commander  of  the  French 
privateer,  The  Citizen  Genet,  captured  as  a  prize  on  the  high  seas  the 
sloop  Betsy  and  sent  the  vessel  into  Baltimore,  where  the  owners  of 
the  sloop  and  cargo  filed  a  libel  in  the  District  Court  of  Maryland, 
claiming  restitution  because  the  vessel  belonged  to  subjects  of  the 
King  of  Sweden,  a  neutral  Power,  and  the  cargo  was  owned  jointly 
by  Swedes  and  Americans.  The  District  Court  denied  jurisdiction, 
the  Circuit  Court  affirmed  the  decree,  and  an  appeal  was  prosecuted 
to  this  court.  The  unanimous  opinion  was  announced  by  Mr.  Chief 
Justice  Jay,  holding  that  the  District  Courts  of  the  United  States  pos- 
sessed the  powers  of  courts  of  admiralty,  whether  sitting  as  an  in- 
stance or  as  a  prize  court,  and  sustained  the  jurisdiction  of  the  Dis- 
trict Court  of  Maryland,  and  held  that  that  court  was  competent  to 
inquire  into  and  decide  whether  restitution  should  be  made  to  the 
complainants  conformably  to  the  laws  of  nations  and  the  treaties  and 
laws  of  the  United  States. 

The  question  came  ag»in  before  this  court  in  the  case  of  The  Santis- 
sima  Trinidad,  decided  in  1822,  reported  in  7  Wheaton,  283.  In  that 
case  it  was  held  that  an  illegal  capture  would  be  invested  with  the 
character  of  a  tort,  and  that  the  original  owners  were  entitled  to 
restitution  when  the  property  was  brought  within  our  jurisdiction.  The 
opinion  was  delivered  by  Mr.  Justice  Story,  and,  after  a  full  discus- 
sion of  the  matter,  the  court  held  that  such  an  illegal  capture,  if 
brought  into  the  jurisdiction  of  the  courts  of  the  United  States,  was 
subject  to  condemnation  and  restitution  to  the  owners,  and  the  learned 
justice  said: 

If,  indeed,  the  question  were  entirely  new,  it  would  deserve  very 
grave  consideration,  whether  a  claim  founded  on  a  violation 
of  our  neutral  jurisdiction  could  be  asserted  by  private  persons, 
or  in  any  other  manner  than  a  direct  intervention  of  the  Govern- 
ment itself.  In  the  case  of  a  capture  made  within  a  neutral  ter- 
ritorial jurisdiction,  it  is  well  settled,  that  as  between  the  captors 
and  the  captured,  the  question  can  never  be  litigated.  It  can 
arise  only  upon  a  claim  of  the  neutral  sovereign  asserted  in  his 
own  courts  or  the  courts  of  the  Power  having  cognizance  of  the 
capture  itself  for  the  purposes  of  prize.  And  by  analogy  to  this 
course  of  proceeding,  the  interposition  of  our  own  Government 
might  seem  fit  to  have  been  required  before  cognizance  of  the 
wrong  could  be  taken  by  our  courts.  But  the  practice  from  the 
beginning  in  this  class  of  causes,  a  period  of  nearly  30  years,  has 


THE  STEAMSHIP  APPAM  135 

been  uniformly  the  other  way;  and  it  is  now  too  late  to  disturb 
it.  If  any  inconvenience  should  grow  out  of  it,  from  reasons  of 
state  policy  or  executive  discretion,  it  is  competent  for  Congress 
to  apply  at  its  pleasure  the  proper  remedy.  (Page  349.) 

.  .  .  Whatever  may  be  the  exemption  of  the  public  ship 
herself,  and  of  her  armament  and  munitions  of  war,  the  prize 
property  which  she  brings  into  our  ports  is  liable  to  the  jurisdic- 
tion of  our  courts,  for  the  purpose  of  examination  and  inquiry, 
and  if  a  proper  case  be  made  out,  for  restitution  to  those  whose 
possession  has  been  devested  by  a  violation  of  our  neutrality; 
and  if  the  goods  are  landed  from  the  public  ship  in  our  ports,  by 
the  express  permission  of  our  own  Government,  that  does  not 
vary  the  case,  since  it  involves  no  pledge  that  if  illegally  captured 
they  shall  be  exempted  from  the  ordinary  operation  of  our  laws. 
(Page  354.) 

In  the  subsequent  cases  in  this  court  this  doctrine  has  not  been  de- 
parted from.  L' Invincible,  1  Wheaton,  238,  258;  The  Estrella,  4 
Wheaton,  298,  308,  9,  10,  11;  La  Amistad  de  Rues,  5  Wheaton,  385, 
390. 

It  is  insisted  that  these  cases  involve  illegal  captures  at  sea,  or  viola- 
tions of  neutral  obligation,  not  arising  because  of  the  use  of  a  port 
by  sending  in  a  captured  vessel  and  keeping  her  there  in  violation  of 
our  rights  as  a  neutral.  But  we  are  at  a  loss  to  see  any  difference  in 
principle  between  such  cases  and  breaches  of  neutrality  of  the  char- 
acter here  involved  in  undertaking  to  make  of  an  American  port  a 
depository  of  captured  vessels  with  a  view  to  keeping  them  there  in- 
definitely. Nor  can  we  consent  to  the  insistence  of  counsel  for  appel- 
lant that  the  Prize  Court  of  the  German  Empire  has  exclusive  juris- 
diction to  determine  the  fate  of  the  Appam  as  lawful  prize.  The  ves- 
sel was  in  an  American  port  and  under  our  practice  within  the  juris- 
diction and  possession  of  the  District  Court  which  had  assumed  to 
determine  the  alleged  violation  of  neutral  rights,  with  power  to  dis- 
pose of  the  vessel  accordingly.  The  foreign  tribunal  under  such  cir- 
cumstances could  not  oust  the  jurisdiction  of  the  local  court  and  thereby 
defeat  its  judgment.  The  Santissima  Trinidad,  supra,  p.  355. 

Were  the  rule  otherwise  than  this  court  has  frequently  declared 
it  to  be,  our  ports  might  be  filled  in  case  of  a  general  war  such  as  is 
now  in  progress  between  the  European  countries,  with  captured  prizes 
of  one  or  the  other  of  the  belligerents,  in  utter  violation  of  the  prin- 


136  DECISIONS  OF  FEDERAL  COURTS 

ciples  of  neutral  obligation  which  have  controlled  this  country  from 
the  beginning. 

The  violation  of  American  neutrality  is  the  basis  of  jurisdiction,  and 
the  Admiralty  Courts  may  order  restitution  for  a  violation  of  such  neu- 
trality. In  each  case  the  jurisdiction  and  order  rests  upon  the  au- 
thority of  the  courts  of  the  United  States  to  make  restitution  to  private 
owners  for  violations  of  neutrality  where  offending  vessels  are  within 
our  jurisdiction,  thus  vindicating  our  rights  and  obligations  as  a  neu- 
tral people. 

It  follows  that  the  decree  in  each  case  must  be 

Affirmed. 


Opinions  of  Attorneys  General  of  the  United  States 

CASE   OF   DESERTERS   FROM   THE  PRUSSIAN   FRIGATE 

NIOBE1 

The  provisions  of  the  treaty  of  May  1,  1828,  between  the  United  States  and 
Prussia,  for  the  arrest  and  imprisonment  of  deserters  from  public  ships 
and  merchant  vessels  of  the  respective  countries,  applies  to  public  vessels 
sailing  under  the  flag  of  the  North  German  Union  and  deserters  from  such 
vessels. 

ATTORNEY  GENERAL'S  OFFICE, 

August  19,  1868. 

Sir :  I  have  considered  the  opinion  of  the  examiner  of  claims  in  your 
department,  transmitted  to  me  under  cover  of  your  letter  of  the  20th 
ultimo,  upon  the  question,  how  far  the  treaty  of  1828,  between  the 
United  States  and  Prussia,  on  the  subject  of  the  arrest  and  imprison- 
ment by  the  local  authorities  of  each  country  of  deserters  from  the 
ships  of  war  and  merchant  vessels  of  the  other,  is  obligatory  upon  the 
United  States  in  respect  to  deserters  from  the  public  and  private  vessels 
sailing  under  the  flag  of  the  North  German  Union. 

The  result  of  the  victory  of  Sadowa  and  the  negotiations  of  Nichols- 
burg  was  the  territorial  enlargement  of  Prussia,  by  the  annexation  of 
Hesse  Cassel,  Nassau,  Hanover,  Holstein,  and  Frankfort,  and  the 
foundation  of  a  confederation  or  union  between  Prussia,  thus  enlarged 
in  territory  and  population,  and  the  North  German  States,  under  a 
constitution  of  government  which  gave  the  King  of  Prussia  the  presi- 
dency of  the  union,  with  power  to  declare  war  and  conclude  peace,  make 
treaties  with  foreign  States,  accredit  ministers  and  receive  them,  like- 
wise the  command,  in  war  and  in  peace,  of  the  entire  army  and  navy 
of  the  union,  with  power,  whenever  the  public  safety  is  threatened,  to 
declare  martial  law  in  any  part  of  the  union. 

Prussia  has  a  treaty  of  commerce  and  navigation  with  the  United 
States,  dated  May  1,  1828,  which  provides,  that  the  consuls  of  tht 
respective  Governments  "are  authorized  to  require  the  assistance  of 


1  Official  Opinions  of  the  Attorneys  General  of  the  United  States,  vol.   12, 
p.  463. 


138  OPINIONS  OF  ATTORNEYS  GENERAL 

the  local  authorities  for  the  search,  arrest,  and  imprisonment  of  the 
deserters  from  the  ships  of  war  and  merchant  vessels  of  their  country." 
In  April  last  application  was  made,  under  this  provision  of  the  treaty 
with  Prussia,  by  the  consul  general  of  the  North  German  Union  in 
New  York,  to  a  United  States  commissioner,  for  a  warrant  for  the 
arrest  of  eleven  deserters  from  a  public  armed  vessel,  sailing  under 
the  flag  of  the  union,  which  is  styled  by  the  minister  of  Prussia  near 
this  Government  as  "His  majesty's  frigate  Niobe"  The  application 
of  the  consul  general  was  refused  by  the  commissioner,  upon  the  gen- 
eral ground  that  the  treaty  stipulation  referred  to  did  not  apply  to 
vessels  belonging  to  the  North  German  Union.  Baron  Gerolt,  the 
diplomatic  representative  here  of  the  North  German  Union,  protests 
against  the  refusal  of  the  commissioner  to  issue  a  warrant  for  the 
arrest  of  these  deserters ;  and  hence  the  question  is  presented  as  to 
the  validity  of  the  objection  urged  by  the  commissioner  to  the  right 
of  the  consular  representative  of  the  union  to  claim,  on  behalf  of  that 
Government,  in  respect  to  deserters  from  one  of  its  public  armed  vessels, 
the  benefits  of  the  treaty  of  1828.  The  examiner  of  claims,  in  the 
opinion  you  have  transmitted  to  me,  has  discussed  not  only  this  ques- 
tion, which  is  practically  the  only  one  that  has  been  raised,  so  far  as 
I  am  informed,  by  any  events  that  have  actually  transpired  calling  for 
a  consideration  of  our  treaty  relations  with  the  States  of  the  North 
German  Union,  but  also  the  larger  question  as  to  the  effect  of  the 
change  in  the  political  status  and  relations  of  the  States  consolidated 
and  confederated  with  Prussia,  upon  the  stipulations  in  our  treaties  of 
commerce  and  navigation  with  Prussia  and  those  other  States,  in 
respect  to  the  seamen  deserting  from  their  merchant  vessels  now  sailing 
under  a  common  national  flag.  I  fully  concur  in  the  conclusion  of  the 
law  officer  of  your  department,  that  the  commissioner  at  New  York 
erred  in  refusing  to  issue  a  warrant  for  the  arrest  of  the  deserting 
seamen  of  the  frigate  Niobe,  but  I  will  forbear  at  this  time,  with 
your  permission,  from  giving  an  official  opinion  on  the  more  doubtful 
and  difficult  questions  which  are  discussed  in  the  papers  from  your 
department  now  before  me.  It  seems  to  me  that  a  better  occasion, 
perhaps,  would  be  afforded  for  such  a  discussion  when  a  case  prac- 
tically shall  arise  calling  for  the  communication  of  the  views  of  the 
Executive  in  regard  to  our  treaties  with  the  States  of  the  Norjh  German 
Union  to  those  judicial  functionaries  who,  under  our  system  of  govern- 


DESERTERS  FROM  THE  FRIGATE  NIOBE  139 

ment,  are  intrusted  with  the  due  fulfillment  and  execution  of  those 
treaties  on  the  part  of  the  United  States,  in  respect  to  the  subjects- 
matter  particularly  discussed  by  the  examiner  of  claims. 

In  regard  to  naval  vessels  of  the  North  German  Union,  I  am  clearly 
of  opinion  that  they  are  the  ships  of  war  of  Prussia,  within  the 
meaning  of  the  treaty  of  1828,  and  that  deserters  therefrom  may  be 
arrested  by  the  proper  local  authorities  of  the  United  States,  on  the 
application  of  the  proper  consular  officer  of  the  union,  pursuant  to 
that  treaty.  I  have  referred  incidentally  to  those  provisions  of  the 
Constitution  of  the  union,  which  declare  as  follows : 

The  presidency  of  the  union  belongs  to  the  Crown  of  Prussia. 
The  Crown  of  Prussia  is  therefore  entitled  to  represent  the  union 
as  a  nation,  and  to  declare  war  and  conclude  peace  in  the  name 
of  the  union,  to  form  alliances  and  make  other  treaties  with 
foreign  States,  accredit  ministers  and  receive  them. 

The  aggregate  land  forces  of  the  union  shall  form  a  single  army, 
which,  in  war  and  peace,  is  placed  under  the  command  of  His 
Majesty  the  King  of  Prussia,  as  commander-in-chief  of  the  union. 

The  entire  navy  of  the  union  is  under  the  command  of  Prussia. 
Its  organization  belongs  to  the  King  of  Prussia,  who  appoints  its 
officers  and  officials,  who  take  the  oath  of  allegiance  to  him. 

The  construction  and  effect  given  by  the  examiner  of  claims  to  these 
provisions  of  the  constitution  of  the  German  Union  seem  to  be  well 
supported  by  the  course  of  reasoning  pursued  in  his  opinion,  and  I 
content  myself  at  present  with  an  expression  of  satisfaction  with  his 
view  as  applied  to  the  case  to  which  your  attention  has  been  directed 
by  Baron  Gerolt. 

I  would  not  be  understood  as  entertaining  any  objection  to  the  recom- 
mendation which  the  law  officer  of  your  department  has  deemed  neces- 
sary to  make  looking  to  a  review  of  our  treaties  with  the  States  of 
the  North  German  Union.  The  relations  of  the  States  of  North  Ger- 
many to  one  another  and  to  the  United  States  have  been  so  considerably 
modified  by  the  confederation  of  1867,  that  many  perplexing  questions 
of  reciprocal  rights  and  obligations  are  likely  to  arise  under  those 
various  treaties,  and  those  questions  it  may  be  deemed  the  part  of  good 
statesmanship  to  avoid,  by  new  treaties  adapted  to  the  present  condi- 
tion of  the  North  German  States. 

I  desire  to  remark,  in  conclusion,  that  under  our  system  stipulations 
for  the  apprehension,  within  our  jurisdiction,  of  deserters  from  foreign 


140  OPINIONS  OF  ATTORNEYS  GENERAL 

vessels,  are  executed  by  officers  of  the  judicial  department  of  the  Gov- 
ernment, in  virtue  of  special  authority  conferred  by  acts  of  Congress. 
The  questions  arising  upon  the  interpretation  and  effect  of  such  treaties 
must,  therefore,  be  peculiarly  and  primarily  questions  of  judicial  cog- 
nizance and  consideration.  The  act  of  March  2,  1829,  authorizes  any 
court,  judge,  justice,  or  other  magistrate,  having  competent  power,  to 
issue  warrants  for  the  arrest,  for  examination,  of  seamen  deserting 
from  the  vessels  of  any  foreign  Governments  with  whom  we  have 
treaties  for  the  restoration  of  deserting  seamen,  upon  the  application 
of  the  consular  officers  of  such  Governments,  with  authority  to  deliver 
up  such  seamen  to  such  consular  officers.  The  subsequent  act  of  Feb- 
ruary 24,  1855,  confers  upon  commissioners  of  the  Circuit  Courts  of 
the  United  States  similar  authority.  The  officers  named  in  these  stat- 
utes are  not  subject  to  the  control  or  direction  of  the  executive  depart- 
ment of  the  Government. 

Applications  for  the  apprehension  of  deserting  seamen  are  made  to 
them  directly  by  the  consuls  of  foreign  Governments,  and  it  may  well 
occur  that  such  applications  are  disposed  of  summarily,  and  before 
any  opportunity  can  arise  for  intervention  by  the  diplomatic  represen- 
tative of  the  foreign  Government,  or  the  political  department  of  our 
own  Government.  It  may  be  of  the  highest  consequence,  that  in  a  case 
involving  the  construction  of  such  a  treaty,  full  opportunity  should  be 
afforded  both  this  and  the  foreign  Government  for  the  presentation  of 
their  views  upon  the  subject  to  the  judicial  functionary  the  exercise 
of  whose  jurisdiction  has  been  invoked  in  the  particular  case.  I  appre- 
hend that  the  learned  commissioner,  who  refused  to  issue  his  warrant 
in  the  case  of  the  seamen  of  the  Niobe,  would  have  taken  a  different 
view  of  the  treaty  in  question  if  his  attention  had  been  particularly 
called  to  those  provisions  of  the  constitution  of  the  North  German 
Union  which  I  have  referred  to. 

It  may  be  proper,  in  case  you  agree  with  the  view  I  have  taken  of 
that  treaty  in  respect  to  public  armed  vessels  under  the  flag  of  the 
North  German  Union,  to  make  the  district  attorney  of  the  United 
States  at  New  York  acquainted  with  your  opinion,  and  to  give  such 
instructions  to  that  officer  as  will  enable  him  to  make  proper  repre- 
sentation of  that  opinion  to  the  commissioner  or  other  judicial  func- 
tionary in  any  future  case  of  like  character,  and  to  advise  your  depart- 
ment of  the  occurrence  of  other  cases  arising  under  our  treaties  with 


TONNAGE  DUTY  141 

the  States  of  the  North  German  Union  that  may  call  for  renewed  con- 
sideration of  the  subject  by  your  department. 
I  am,  sir,  very  respectfully, 

Your  obedient  servant, 

WM.  M.  EVARTS. 
HON.  WM.  H.  SEWARD, 
Secretary  of  State. 


TONNAGE  DUTY1 

The  discrimination  as  to  tonnage  duty  in  favor  of  vessels  sailing  from  the 
regions  mentioned  in  the  act  of  June  26,  1884,  chapter  121,  and  entered  in 
our  ports,  is  purely  geographical  in  character,  inuring  to  the  advantage 
of  any  vessel  of  any  Power  that  may  choose  to  transport  between  this 
country  and  any  port  embraced  by  the  fourteenth  section  of  that  act. 

DEPARTMENT  OF  JUSTICE, 

September  19,  1885. 

Sir:  Your  communication  of  the  8th  September,  instant,  with  the 
inclosures  therein  referred  to,  has  received  my  deliberate  consideration, 
and  I  have  the  honor  to  submit,  in  reply,  that  I  agree  with  you  entirely 
in  the  interpretation  you  place  on  the  fourteenth  section  of  the  act  of 
Congress  of  the  26th  June,  1884,  entitled  "An  act  to  remove  certain 
burdens  on  the  American  merchant  marine  and  encourage  the  American 
foreign  carrying  trade,  and  for  other  purposes,"  and  in  your  conclusion 
that  the  claims  set  up  by  the  several  Powers  mentioned  by  you  are  not, 
founded. 

The  discrimination  as  to  tonnage  duty  in  favor  of  vessels  sailing 
from  the  regions  mentioned  in  the  act  and  entered  in  our  ports  is,  I 
think,  purely  geographical  in  character,  inuring  to  the  advantage  of 
any  vessel  of  any  Power  that  may  choose  to  fetch  and  carry  between 
this  country  and  any  port  embraced  by  the  fourteenth  section  of  the  act. 

I  see  no  warrant,  therefore,  to  claim  that  there  is  anything  in  "the 
most  favored  nation"  clause  of  the  treaty  between  this  country  and  the 
Powers  mentioned  that  entitles  them  to  have  the  privileges  of  the  four- 


1  Official  Opinions  of  the  Attorneys  General  of  the  United  States,  vol.  18,  p.  260. 
For  the  diplomatic  correspondence,  see  post,  p.  151.  See  also  the  case  of  North 
German  Lloyd  S.  S.  Co.  v.  Hedden,  ante,  p.  100. 


142  OPINIONS  OF  ATTORNEYS  GENERAL 

teenth  section  extended  to  their  vessels  sailing  to  this  country  from 
ports  outside  the  limitation  of  the  act. 

Your  able  and  comprehensive  discussion  of  the  subject  renders  it 
quite  unnecessary  for  me  to  treat  it  at  large. 

I  have  the  honor  to  be,  your  most  obedient  servant, 

W.  A.  MAURY, 
Acting  Attorney  General. 
THE  SECRETARY  OF  STATE. 


DUTY— IMPORTED  SALT— TREATY  WITH  PRUSSIA1 

The  treaty  of  May  1,  1828,  between  the  United  States  and  the  Kingdom  of 
Prussia,  is  to  be  taken  as  operative  as  respects  so  much  of  the  German 
Empire  as  constitutes  the  Kingdom  of  Prussia.  Semble,  that  it  is  not 
effective  as  regards  the  rest  of  that  Empire. 

The  "most  favored  nation  clause"  in  that  treaty  is  not  violated  by  paragraph 
608  of  the  tariff  act  of  August  27,  1894,  laying  a  discriminating  duty  on 
salt  imported  from  a  country  which  imposes  a  duty  on  salt  exported  from 
the  United  States. 

In  case  of  conflict  between  a  treaty  and  a  subsequent  statute,  the  latter 
governs. 

The  laws  of  a  foreign  country  are  not  known  to  the  attorney  general,  but  are 
facts  to  be  proved  by  competent  evidence. 

As  to  when  the  discriminating  duty  aforesaid  applies  to  a  country  which  inv 
poses  a  duty  on  salt  exported  from  the  United  States  but  lays  a  counter- 
vailing excise  tax  on  domestic  salt.  Qucere. 

DEPARTMENT  OF  JUSTICE, 

November  13,  1894. 

Sir:  I  have  the  honor  to  acknowledge  your  communication  of 
October  27,  asking  my  official  opinion  upon  the  question  whether  salt 
imported  from  the  Empire  of  Germany  is  dutiable  under  paragraph 
608  of  the  tariff  act  of  August  27,  1894.  That  paragraph,  which  puts 
salt  in  general  on  the  free  list,  contains  the  following  proviso : 

Provided,  That  if  salt  is  imported  from  any  country  whether 
independent  or  a  dependency  which  imposes  a  duty  upon  salt  ex- 
ported from  the  United  States,  then  there  shall  be  levied,  paid,  and 
collected  upon  such  salt  the  rate  of  duty  existing  prior  to  the 
passage  of  this  act. 


1  Official  Opinions  of  the  Attorneys  General  of  the   United  States,  vol.  21, 
p.  80. 


DUTY  ON  IMPORTED  SALT  143 

As  Germany  imposes  a  duty  upon  salt  exported  from  the  United 
States,  German  salt  is  apparently  subject  to  the  proviso  just  quoted. 
The  German  ambassador,  however,  claims  it  is  entitled  to  come  into 
the  United  States  free  on  two  grounds. 

One  is  the  "most  favored  nation  clause,"  so  called,  which  is  em- 
bodied in  the  following  provisions  of  the  treaty  of  May  1,  1828,  be- 
tween the  United  States  and  Prussia: 

ARTICLE  5 

No  higher  or  other  duties  shall  be  imposed  on  the  importation 
into  the  United  States  of  any  article  the  produce  or  manufacture 
of  Prussia,  and  no  higher  or  other  duties  shall  be  imposed  on  the 
importation  into  the  Kingdom  of  Prussia  of  any  article  the  pro- 
duce or  manufacture  of  the  United  States,  than  are  or  shall  be 
payable  on  the  like  article  being  the  produce  or  manufacture  of 
any  other  foreign  country.  .  .  . 

ARTICLE  9 

If  either  party  shall  hereafter  grant  to  any  other  nation  any 
particular  favor  in  navigation  or  commerce,  it  shall  immediately 
become  common  to  the  other  party,  freely,  where  it  is  freely 
granted  to  such  other  nation,  or  on  yielding  the  same  compensa- 
tion, when  the  grant  is  conditional. 

It  should  be  noted  that  while  this  treaty  is  to  be  taken  as  operative 
as  respects  so  much  of  the  German  Empire  as  constitutes  the  Kingdom 
of  Prussia  no  facts  or  considerations  with  which  I  have  been  made 
acquainted  justify  the  assumption  that  it  is  to  be  taken  as  effective 
as  regards  other  portions  of  the  Empire.  Neither  am  I  informed 
whether  the  German  salt,  for  which  free  admission  into  this  country 
is  demanded,  is  a  product  or  manufacture  of  Prussia  proper,  or  of 
some  other  part  or  parts  of  the  German  Empire. 

If  it  be  assumed,  however,  for  present  purposes,  that  the  treaty  of 
1828  binds  the  United  States  as  regards  all  the  constituent  parts  of 
the  German  Empire,  the  claim  of  the  German  ambassador,  founded 
upon  the  "most  favored  nation  clause,"  must  be  pronounced  untenable 
for  at  least  two  conclusive  reasons. 

In  the  first  place,  the  "most  favored  nation  clauses"  of  our  treaties 
with  foreign  Powers  have,  from  the  foundation  of  our  Government, 
been  invariably  construed  both  as  not  forbidding  any  internal  regula- 


144  OPINIONS  OF  ATTORNEYS  GENERAL 

tions  necessary  for  the  protection  of  our  home  industries,  and  as  per- 
mitting commercial  concessions  to  a  country  which  are  not  gratuitous, 
but  are  in  return  for  equivalent  concessions,  and  to  which  no  other 
country  is  entitled  except  upon  rendering  the  same  equivalents.  Thus, 
Mr.  Jefferson,  when  Secretary  of  State  in  1792,  said  of  treaties  ex- 
changing the  rights  of  the  most  favored  nation  that  "they  leave  each 
party  free  to  make  what  internal  regulations  they  please,  and  to  give 
what  preference  they  find  expedient  to  native  merchants,  vessels,  and 
productions."  In  1817  Mr.  John  Quincy  Adams,  acting  in  the  same 
official  capacity,  took  the  ground  that  the  "most  favored  nation  clause 
only  covered  gratuitous  favors  and  did  not  touch  concessions  for 
equivalents  expressed  or  implied."  Mr.  Clay,  Mr.  Livingston,  Mr. 
Evarts,  and  Mr.  Bayard,  when  at  the  head  of  the  Department  of  State, 
have  each  given  official  expression  to  the  same  view.  It  has  also 
received  the  sanction  of  the  Supreme  Court  in  more  than  one  well- 
considered  decision,  while  in  Bartram  v.  Robertson  (122  U.  S.  116), 
Mr.  Justice  Field,  speaking  for  the  whole  court,  expounded  the  stipu- 
lations of  the  "most  favored  nation  clause"  in  this  language  (p.  120)  : 

They  were  pledges  of  the  two  contracting  parties,  the  United 
States  and  the  King  of  Denmark,  to  each  other,  that,  in  the  im- 
position of  duties  on  goods  imported  into  one  of  the  countries 
which  were  the  produce  or  manufacture  of  the  other,  there  should 
be  no  discrimination  against  them  in  favor  of  goods  of  like  char- 
acter imported  from  any  other  country.  They  imposed  an  obli- 
gation upon  both  countries  to  avoid  hostile  legislation  in  that 
respect. 

This  interpretation  of  the  "most  favored  nation  clause,"  so  clearly 
established  as  a  doctrine  of  American  law,  is  believed  to  accord  with 
the  interpretation  put  upon  the  clause  by  foreign  Powers — certainly  by 
Germany  and  Great  Britain.  Thus,  as  the  clause  permits  any  internal 
regulations  that  a  country  may  find  necessary  to  give  a  preference  to 
"native  merchants,  vessels,  and  productions,"  the  representatives  of 
both  Great  Britain  and  Germany  expressly  declared,  at  the  Interna- 
tional Sugar  Conference  of  1888,  that  the  export  sugar  bounty  of  one 
country  might  be  counteracted  by  the  import  sugar  duty  of  another 
without  causing  any  discrimination  which  could  be  deemed  a  viola- 
tion of  the  "most  favored  nation  clause."  So  both  Germany  and  Great 
Britain  acquiesced  in  the  position  of  the  United  States,  that  our  treaty 
with  Hawaii  did  not  entitle  those  nations  to  equal  privileges  in  regard 


DUTY  ON  IMPORTED  SALT  145 

to  imports  with  those  thus  obtained  by  the  United  States,  the  privi- 
leges granted  to  the  United  States  being  in  consideration  of  conces- 
sions by  the  United  States  which  Germany  and  Great  Britain  not  only 
did  not  offer  to  make,  but,  in  the  nature  of  things,  could  not  make. 

If  these  established  principles  be  applied  to  the  case  in  hand  but  one 
result  seems  to  be  possible.  The  form  which  the  provisions  of  our 
recent  tariff  act  relating  to  salt  may  have  assumed  is  quite  immaterial. 
It  enacts,  in  substance  and  effect,  that  any  country  admitting  American 
salt  free  shall  have  its  own  salt  admitted  free  here,  while  any  country 
putting  a  duty  upon  American  salt  shall  have  its  salt  dutiable  here 
under  the  preexisting  statute.  In  other  words,  the  United  States  con- 
cedes "free  salt"  to  any  nation  which  concedes  "free  salt"  to  the  United 
States.  Germany,  of  course,  is  entitled  to  that  concession  upon  return- 
ing the  same  equivalent.  But  otherwise  she  is  not  so  entitled,  and 
there  is  nothing  in  the  "most  favored  nation  clause"  which  compels 
the  United  States  to  discriminate  against  other  nations  and  in  favor 
of  Germany  by  granting  gratuitously  to  the  latter  privileges  which  it 
grants  to  the  former  only  upon  the  payment  of  a  stipulated  price. 

In  the  next  place,  even  if  the  provisions  of  our  recent  tariff  act 
under  consideration  could  be  deemed  to  contravene  the  "most  favored 
nation  clause"  of  the  treaty  with  Germany — as  they  can  not  be  for 
the  reasons  stated — the  result  will  be  the  same.  The  tariff  act  is  a 
statute  later  than  the  treaty  and,  so  far  'as  inconsistent  with  it,  is  con- 
trolling. The  principle  is  too  well  settled  to  admit  of  discussion,  and 
if  any  relief  from  its  operations  is  desirable  it  can  be  obtained  only 
through  proper  modifying  legislation  by  Congress. 

While  the  first  proposition  of  the  German  ambassador  proceeds  upon 
the  basis  that  Germany  does  levy  an  import  duty  on  American  salt, 
his  second  proposition  is  that  in  reality  it  does  not  do  so.  The  duty, 
it  is  said,  should  be  regarded  as  in  fact  an  internal  excise  tax,  since 
a  tax  equivalent  to  the  duty  is  levied  upon  all  salt  in  the  country  when- 
ever and  however  it  appears,  and  is  the  same  upon  salt  produced  in 
Germany  as  upon  salt  coming  from  the  United  States.  It  is  matter 
of  convenience  merely  that  the  tax  upon  American  salt  is  collected 
immediately  upon  its  arrival  in  port.  In  short,  the  claim  is  that  there 
is  no  discrimination  against  American  salt,  which  is  the  evil  our  statute 
aims  to  prevent;  that  American  salt  and  German  salt  are  in  reality 
treated  on  a  footing  of  entire  equality. 


146  NEUTRALITY  PROCLAMATION  OF  1870 

The  validity  of  this  proposition  I  do  not  think  I  am  in  a  position  to 
judge  of,  for  want  of  sufficient  data.  The  laws  of  Germany  I  do  not 
and  can  not  be  expected  to  know,  and,  like  other  foreign  laws,  are 
facts  to  be  proved  by  competent  evidence.  The  statement  respecting 
them  made  by  the  German  ambassador  in  a  communication  to  the 
Secretary  of  State  (copy  of  which  you  inclose)  are  undoubtedly  cor- 
rect, but  they  leave  me  in  doubt  upon  what  seems  to  me  a  vital  point, 
viz.,  whether  the  internal  excise  tax  on  salt  referred  to  is  imperial  in 
character — that  is,  is  levied  by  and  belongs  to  the  Imperial  Govern- 
ment— or  is  local,  and  is  levied  by  and  belongs  to  one  or  more  con- 
stituent States  of  the  Empire.  If  it  is  of  the  latter  character,  it  prob- 
ably can  not  be  considered  in  relation  to  the  matter  in  hand  any  more 
than  a  like  domestic  tax  of  any  one  or  more  of  the  States  of  the  United 
States  could  be  considered  in  the  same  relation.  If,  however,  it  could 
be  considered  under  any  circumstances,  then  it  is  obviously  material 
to  know  whether  such  tax  is  levied  by  all  of  the  constituent  States  of 
the  Empire,  without  exception,  and  actually  or  necessarily  at  the  same 
rate. 

As  at  present  advised,  therefore,  salt  imported  from  the  Empire  of 
Germany  is,  in  my  judgment,  legally  dutiable  under  the  statute  above 
quoted. 

Respectfully,  yours, 

RICHARD  OLNEY. 

THE  SECRETARY  OF  THE  TREASURY. 


Extracts  from  a  Proclamation  by  the  President  of  the  United  States, 

August  22,  18701 

Whereas  a  state  of  war  unhappily  exists  between  France  on  the  one 
side  and  the  North  German  Confederation  and  its  allies  on  the  other 
side;  and 

Whereas  the  United  States  are  on  terms  of  friendship  and  amity 
with  all  the  contending  Powers  and  with  the  persons  inhabiting  their 
several  dominions;  and 

Whereas  great  numbers  of  the  citizens  of  the  United  States  reside 
within  the  territories  or  dominions  of  each  of  the  said  belligerents  and 
carry  on  commerce,  trade,  or  other  business  or  pursuits  therein,  pro- 
tected by  the  faith  of  treaties ;  and 

Whereas  great  numbers  of  the  subjects  or  citizens  of  each  of  the 
said  belligerents  reside  within  the  territory  or  jurisdiction  of  the 
United  States  and  carry  on  commerce,  trade,  or  other  business  or  pur- 
suits therein ;  and 

Whereas  the  laws  of  the  United  States,  without  interfering  with  the 
free  expression  of  opinion  and  sympathy,  or  with  the  open  manufac- 
ture or  sale  of  arms  or  munitions  of  war,  nevertheless  impose  upon  all 
persons  who  may  be  within  their  territory  and  jurisdiction  the  duty 
of  an  impartial  neutrality  during  the  existence  of  the  contest: 

Now,  therefore,  I,  Ulysses  S.  Grant,  President  of  the  United  States, 
in  order  to  preserve  the  neutrality  of  the  United  States  and  of  their 
citizens  and  of  persons  within  their  territory  and  jurisdiction,  and  to 
enforce  their  laws,  and  in  order  that  all  persons,  being  warned  of  the 
general  tenor  of  the  laws  and  treaties  of  the  United  States  in  this 
behalf  and  of  the  law  of  nations,  may  thus  be  prevented  from  an 
unintentional  violation  of  the  same,  do  hereby  declare  and  proclaim 
that  by  the  act  passed  on  the  20th  day  of  April,  A.  D.  1818,  commonly 
known  as  the  "neutrality  law,"  the  following  acts  are  forbidden  to 
be  done,  under  severe  penalties,  within  the  territory  and  jurisdiction 
of  the  United  States,  to  wit:  . 

And  I  do  further  declare  and  proclaim  that  by  the  nineteenth  article 


1  Richardson :  Messages  and  Papers  of  the  Presidents,  vol.  7,  p.  86 ;   U.  S. 
Statutes  at  Large,  vol.  16,  p.  1132. 


148  NEUTRALITY  PROCLAMATION  OF  1870 

of  the  treaty  of  amity  and  commerce  which  was  concluded  between 
His  Majesty  the  King  of  Prussia  and  the  United  States  of  America 
on  the  llth  day  of  July,  A.  D.  1799,  which  article  was  revived  by 
the  treaty  of  May  1,  A.  D.  1828,  between  the  same  parties,  and  is  still 
in  force,  it  was  agreed  that 

the  vessels  of  war,  public  and  private,  of  both  parties  shall  carry 
freely,  wheresoever  they  please,  the  vessels  and  effects  taken  from 
their  enemies,  without  being  obliged  to  pay  any  duties,  charges,  or 
fees  to  officers  of  admiralty,  of  the  customs,  or  any  others ;  nor 
shall  such  prizes  be  arrested,  searched,  or  put  under  legal  process 
when  they  come  to  and  enter  the  ports  of  the  other  party,  but  may 
freely  be  carried  out  again  at  any  time  by  their  captors  to  the 
places  expressed  in  their  commissions,  which  the  commanding  offi- 
cer of  such  vessel  shall  be  obliged  to  show. 

And  I  do  further  declare  and  proclaim  that  it  has  been  officially 
communicated  to  the  Government  of  the  United  States  by  the  Envoy 
Extraordinary  and  Minister  Plenipotentiary  of  the  North  German  Con- 
federation at  Washington  that  private  property  on  the  high  seas  will 
be  exempted  from  seizure  by  the  ships  of  His  Majesty  the  King  of 
Prussia,  without  regard  to  reciprocity. 


In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the 

seal  of  the  United  States  to  be  affixed. 

[SEAL]  Done  at  the  city  of  Washington,  this  22d  day  of  August, 
A.  D.  1870,  and  of  the  Independence  of  the  United  States  of 
America  the  ninety-fifth. 

U.  S.  GRANT. 
By  the  President : 
HAMILTON  FISH, 
Secretary  of  State. 


Diplomatic  Correspondence 


Tonnage  Dues1 

Mr.  von  Alvensleben  to  Mr.  Bayard 
[Translation] 

IMPERIAL  GERMAN  LEGATION, 
Washington,  August  3, 1885  (Received  August  5). 

The  undersigned,  Imperial  German  Ambassador  Extraordinary  and 
Minister  Plenipotentiary,  has,  in  accordance  with  the  orders  he  has 
received,  the  honor  to  make  the  following  very  respectful  communi- 
cation to  Hon.  Thomas  F.  Bayard,  Secretary  of  State  of  the  United 
States. 

By  a  law  of  June  26,  1884  (an  act  to  remove  certain  burdens  on  the 
American  merchant  marine  and  encourage  the  American  foreign  carry- 
ing trade,  and  for  other  purposes),  section  14  (tonnage  tax),  it  has 
been  provided  that  vessels  which  sail  from  a  port  in  North  or  Central 
America,  in  the  West  Indian  Islands,  the  Bahama,  Bermuda,  and  Sand- 
wich Islands,  to  a  port  of  the  United  States,  shall  pay  in  it,  in  place 
of  the  previous  tonnage  tax  of  30  cents  per  ton  a  year,  only  3  cents 
per  ton,  and  not  more  than  15  cents  a  year,  whilst  vessels  from  other 
foreign  ports  have  to  bear  a  tax  of  6  cents.  This  lowering  of  the  tax 
to  3  cents  has  been  granted  to  the  favored  countries — Canada,  New- 
foundland, the  Bahamas,  Bermuda,  and  West  Indian  Islands,  Mexico, 
and  Central  America,  including  Panama  and  Aspinwall — uncondition- 
ally and  without  regard  to  the  taxes,  however  relatively  high,  these 
countries  on  their  side  levy  on  American  ships. 

Article  9  of  the  Prussian- American  treaty  of  the  1st  of  May,  1828, 
which  has  been  lately  in  the  correspondence  between  the  cabinets  of 
Berlin  and  Washingtop  concerning  the  petroleum  railroad  rates  as  well 
as  because  of  the  Spanish-American  treaty  concerning  the  trade  of 
Cuba  and  Puerto  Rico,  successively  asserted  by  both  Governments  to 
be  valid  for  all  Germany,  runs  as  follows : 

If  either  party  shall  hereafter  grant  to  any  other  nation  any 
particular  favor  in  navigation  or  commerce,  it  shall  immediately 


1  Foreign  Relations  of  the  United  States,  1888,  part  2,  pp.  1872-1878.     See  ante, 
pp.  100,  141. 


152  DIPLOMATIC  CORRESPONDENCE 

become  common  to  the  other  party,  freely,  where  it  is  freely 
granted  to  such  other  nation,  or  on  yielding  the  same  compensa- 
tion, when  the  grant  is  conditional. 

The  treaties  which  the  United  States  in  their  time  have  concluded 
with  the  Hanse  cities,  Oldenburg  and  Mecklenburg,  contain  similar 
provisions.  In  accordance  with  the  purport  of  these,  Germany  has  an 
immediate  claim,  and  without  making  any  concession  in  return,  to  par- 
ticipate in  the  enjoyment  of  the  tonnage  tax  abatement  to  3  cents  per 
ton,  which  has  been  unconditionally  conceded. 

The  undersigned  is,  in  accordance  with  the  view  of  the  Imperial 
Government  above  set  forth,  directed  to  claim  from  the  Government 
of  the  United  States  for  German  vessels  the  abatement  of  the  tonnage 
tax  to  3  cents  per  ton,  and  to  propose,  at  the  same  time,  the  repayment 
of  the  tonnage  tax  which  at  the  rate  of  6  cents  per  ton  has  been  over- 
paid since  the  law  of  the  26th  of  June,  1884,  went  into  effect. 

While  the  undersigned  reserves  for  himself  the  right  to  make  in  due 
time  proper  proposals  in  reference  to  the  abatement  provided  over  and 
above  this  in  the  law  of  the  26th  June  of  last  year,  dependent  on  cer- 
tain conditions,  and  which  (abatement)  may  in  the  future  even  exceed 
that  of  3  cents  per  ton,  according  to  the  result  of  proper  inquiries 
concerning  the  tonnage  dues  and  other  taxes  hereafter  to  be  levied 
in  German  harbors,  he  has  the  honor  to  request  very  respectfully  that 
the  Secretary  of  State  will  kindly  take  the  proper  course,  so  that  Ger- 
man shipping  may  as  soon  as  possible  participate  in  the  unconditional 
favor,  to  which  it  is  entitled,  of  an  abatement  of  the  tonnage  tax  to  3 
cents. 

The  undersigned  has  the  honor  to  await,  very  respectfully,  your  kind 
answer  in  reference  to  this  matter,  and  avails  himself,  etc. 

H.  v   ALVENSLEBEN. 


Mr.  Bayard  to  Mr.  von  Alvensleben 

DEPARTMENT  OF  STATE, 
Washington,  November  7,  1885. 

Sir :  I  had  the  honor  to  receive  in  due  season  your  note  of  August 
3  last,  touching  the  application  of  the  provisions  of  the  fourteenth  sec- 
tion of  the  shipping  act,  approved  June  26,  1884,  in  respect  of  the 


TONNAGE  DUES  153 

collection  of  tonnage  tax  to  vessels  of  Germany  coming  from  ports  of 
that  country  to  ports  of  the  United  States,  under  the  most  favored 
nation  clause  of  the  existing  treaty  of  1828  between  the  United  States 
and  Germany. 

The  importance  of  the  questions  involved  in  the  claim  of  the  Ger- 
man Government  and  in  like  claims  preferred  by  other  Governments 
has  led  to  the  submission  of  the  entire  subject  to  the  judgment  of  the 
attorney  general. 

The  conclusions  of  the  Department  of  Justice,  after  a  careful  exam- 
ination of  the  premises,  are  that — 

The  discrimination  as  to  tonnage  duty  in  favor  of  vessels  sailing 
from  the  regions  mentioned  in  the  act  and  entered  in  our  ports 
is,  I  think,  purely  geographical  in  character,  inuring  to  the  ad- 
vantage of  any  vessel  of  any  Power  that  may  choose  to  fetch  and 
carry  between  this  country  and  any  port  embraced  by  the  four- 
teenth section  of  the  act.  I  see  no  warrant,  therefore,  to  claim  that 
there  is  anything  in  "the  most  favored  nation"  clause  of  the  treaty 
between  this  country  and  the  Powers  mentioned  that  entitles  them 
to  have  the  privileges  of  the  fourteenth  section  extended  to  their 
vessels  sailing  to  this  country  from  ports  outside  of  the  limitation 
of  the  act. 

These  conclusions  are  accepted  by  the  President,  and  I  have,  accord- 
ingly, the  honor  to  communicate  them  to  you,  as  fully  covering  the 
points  presented  in  your  note  of  August  3  last. 

Accept,  etc. 

T.  F.  BAYARD. 


Count  Leyden  to  Mr.  Bayard 
[Translation] 

IMPERIAL  GERMAN  LEGATION, 

Washington,  November  17,  1885  (Received  November  19). 
MR.  SECRETARY  OF  STATE: 

I  have  the  honor  most  respectfully  to  acknowledge  the  receipt  of 
your  polite  note  of  the  7th  instant,  whereby  you  inform  me  that  the 
Department  of  Justice  of  the  United  States  has  decided  in  the  matter 
of  the  application  of  the  provisions  of  section  14  of  the  act  relative 


154  DIPLOMATIC  CORRESPONDENCE 

to  navigation  of  June  26,  1884  to  German  vessels,  that  the  reduction 
of  tonnage  duties  which  is  provided  for  a  specified  region  is  of  a  purely 
geographical  character,  and  that  the  most  favored  nation  clause  can 
consequently  have  no  application  in  this  case. 

I  have  the  honor,  at  the  same  time,  to  inform  you  that  I  have  brought 
the  contents  of  your  aforesaid  note  to  the  notice  of  the  Imperial  Gov- 
ernment. 

Accept,  etc., 

COUNT   LEYDEN. 


Mr.  von  Alvensleben  to  Mr.  Bayard 
[Translation] 

IMPERIAL  GERMAN  LEGATION, 

Washington,  February  16,  1886  (Received  February  18). 
MR.  SECRETARY  OF  STATE: 

The  Imperial  Government  has  seen  by  your  note  of  November  7, 
1885,  relative  to  the  enforcement  of  the  provisions  of  section  14  of 
the  navigation  act  of  June  26,  1884,  that  the  United  States  Govern- 
ment rejects  the  application  (made  on  the  basis  of  the  most  favored 
nation  treaties  now  existing  with  Prussia  and  the  German  States)  for 
equal  rights  with  the  States  of  North  and  Central  America  and  the 
West  Indies.  This  rejection  is  based  on  the  ground  that  that  exemp- 
tion which  is  granted  to  all  vessels  of  all  Powers  sailing  between  the 
countries  in  question  and  the  United  States  is  purely  geographical  in 
its  character,  and  can  not,  therefore,  be  claimed  by  other  States  in  view 
of  the  most  favored  nation  clause. 

I  am  instructed,  and  I  have  the  honor  most  respectfully  to  reply  to 
this,  that  such  a  line  of  argument  is  a  most  unusual  one,  and  is  calcu- 
lated to  render  the  most  favored  nation  clause  wholly  illusory.  On  the 
same  ground,  it  would  be  quite  possible  to  justify,  for  instance,  a 
privilege  granted  exclusively  to  the  South  American  States,  then  one 
granted  also  to  certain  of  the  nearer  European  nations,  so  that  finally, 
under  certain  circumstances,  always  on  the  pretext  that  the  measure 
was  one  of  a  purely  geographical  character,  Germany  alone,  among  all 
the  nations  that  maintain  commercial  relations  with  America,  notwith- 


TONNAGE  DUES  155 

standing  the  most  favored  nation  right  granted  to  that  country  by 
treaty,  might  be  excluded  from  the  benefits  of  the  act. 

It  can  not  be  doubted,  it  is  true,  that  on  grounds  of  purely  local 
character  certain  treaty  stipulations  between  two  Powers,  or  certain 
advantages  autonomically  granted,  may  be  claimed  of  third  States  not 
upon  the  ground  of  a  most  favored  nation  clause.  Among  these  are 
included  facilities  in  reciprocal  trade  on  the  border,  between  States 
whose  territories  adjoin  each  other.  It  is,  however,  not  to  be  doubted 
that  the  international  practice  is  that  such  facilities,  not  coming  within 
the  scope  of  a  most  favored  nation  clause,  are  not  admissible  save 
within  very  restricted  zones.  In  several  international  treaties  these 
zones  are  limited  to  a  distance  of  ten  kilometers  from  the  frontier. 
From  this  point  of  view,  therefore,  the  explanation  given  by  the  United 
States  Government  of  section  14  of  the  shipping  act  can  not  be  justified. 

This  law  grants  definite  advantages  to  entire  countries,  among  others 
to  those  situated  at  a  great  distance  from  the  United  States ;  these 
advantages  are,  beyond  a  doubt,  equivalent  to  facilities  granted  to  the 
trade  and  navigation  of  those  countries,  even  if  they  do,  under  certain 
circumstances,  inure  to  the  benefit  of  individual  vessels  of  foreign 
nations.  It  scarcely  need  be  insisted  upon  that  these  advantages  favor 
the  entire  commerce  of  the  countries  specially  designated  in  the  act, 
since  they  are  now  able  to  ship  their  goods  to  the  United  States  on 
terms  that  have  been  artificially  rendered  more  favorable  than  those  on 
which  other  countries  not  thus  favored  are  able  to  ship  theirs. 

The  treaty1  existing  between  Prussia  and  the  United  States  expressly 
stipulates  that — 

If  either  party  shall  hereafter  grant  to  any  other  nation  any 
particular  favor  in  navigation  or  commerce,  it  shall  immediately 
become  common  to  the  other  party,  freely,  where  it  is  freely 
granted  to  such  other  nation,  or  on  yielding  the  same  compensa- 
tion, when  the  grant  is  conditional. 

Such  a  compensation,  so  far  as  the  reduction  of  the  tonnage  tax  to  3 
cents  is  concerned,  has  not  been  stipulated  for  by  the  United  States 
in  the  aforesaid  shipping  act.  Germany  is,  therefore,  ipso  facto,  entitled 
to  the  reduction  of  the  tax  in  favor  of  vessels  sailing  from  Germany 
to  the  United  States,  especially  since,  according  to  the  constitution  of 

1  Treaty  of  1828,  Art.  9  [ante,  p.  56]. 


156  DIPLOMATIC  CORRESPONDENCE 

the  Empire,  no  tonnage  tax  is  collected  in  Germany  from  foreign  ves- 
sels ;  that  is  to  say,  no  tonnage  tax  of  the  character  of  American  ton- 
nage taxes  in  the  sense  of  section  8,  paragraph  1,  Article  1,  of  the 
American  Constitution,  viz.,  those  designed  to  pay  the  debts  of  the 
Government  and  to  pay  the  expenses  of  the  common  defense  and  the 
general  welfare. 

As  you  remark  in  your  esteemed  note,  Mr.  Secretary  of  State,  you 
have  based  your  decision  on  an  opinion  of  the  attorney  general.  In 
opposition  to  this  view,  it  will  be  seen  by  the  printed  decisions  of  the 
Secretary  of  Treasury,  that  the  latter,  in  an  opinion  on  this  subject 
addressed  to  the  Department  of  State  under  date  of  May  11,  1885, 
expressed  the  opinion  that  vessels  sailing  from  Portugal  to  the  United 
States  are,  indeed,  entitled  to  the  privileges  granted  by  section  14  of 
the  shipping  act,  on  the  ground  of  the  most  favored  nation  treaty  ex- 
isting between  the  two  nations.  This  opinion  harmonizes  in  the  main 
with  the  view  entertained  by  the  Imperial  Government. 

The  Imperial  Government  entertains  the  hope,  in  view  of  the  fore- 
going considerations,  that  the  United  States  Government  on  recon- 
sidering this  matter  will  not  maintain  the  position  taken  in  the  note  of 
November  7,  1885,  and  that  it  will  grant  to  German  vessels  sailing 
between  the  two  countries  the  same  privileges  that  have  long  been 
granted  without  compensation  by  the  German  Empire  to  American 
vessels. 

In  having  the  honor,  therefore,  hereby  to  reiterate  the  application 
made  in  my  note  of  August  3,  1885,  for  the  reduction  of  the  tonnage 
tax  to  3  cents  in  favor  of  vessels  engaged  in  trade  between  Germany 
and  the  United  States,  I  hope  that  the  decision  of  the  United  States 
Government  in  this  matter  will  be  kindly  communicated  to  me. 

Accept,  etc., 

H.  v.  ALVENSLEBEN. 


Mr.  Bayard  to  Mr.  von  Alvensleben 

DEPARTMENT  OF  STATE, 
Washington,  March  4,   1886. 

Sir:  With  reference  to  previous  correspondence  on  the  subject, 
I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  15th 
ultimo,  relative  to  the  question  as  to  the  applicability  of  the  most 


TONNAGE  DUES  157 

favored  nation  clauses  of  the  treaties  of  Prussia  and  other  German 
States  and  the  United  States  to  the  provisions  of  section  14  of  the  act 
of  Congress  of  June  26,  1884. 

In  reply  I  beg  to  inform  you  that  your  note  will  have  consideration, 
it  being  sufficient  for  the  present  to  observe  that  Germany  admits  that 
neighborhood  and  propinquity  justify  a  special  treatment  of  inter- 
course which  may  not  be  extended  to  other  countries  under  the  favored 
nation  clause  in  treaties  with  them,  and  only  appears  to  question  the 
distance  within  which  the  rule  of  neighborhood  is  to  operate. 

Accept  sir,  etc., 

T.   F.  BAYARD. 


Mr.  von  Alvensleben  to  Mr.  Bayard 
[Translation] 

IMPERIAL  GERMAN  LEGATION, 
Washington,  August  i,  1886  (Received  August  2). 
MR.  SECRETARY  OF  STATE  : 

I  had  the  honor  duly  to  receive  your  note  of  the  4th  of  March 
last,  whereby  you  informed  me  that  my  observations  concerning  the 
applicability  of  the  most  favored  nation  clause  to  section  14  of  the 
act  of  Congress  of  June  26,  1884,  would  be  taken  into  consideration, 
and  in  which,  for  the  time  being,  you  confined  yourself,  by  way  of 
reply,  to  one  remark. 

In  the  mean  time  an  act  of  Congress  entitled  "An  act  to  abolish 
certain  fees  for  official  services  to  American  vessels,  and  to  amend 
the  laws  relating  to  shipping  commissioners,  seamen,  and  owners  of 
vessels,  and  for  other  purposes,"  has  been  approved  by  the  President 
of  the  United  States  under  date  of  June  19,  1886  (Public— No.  85), 
and  has  thereby  become  a  law.  I  have  brought  this  act  to  the  notice 
of  the  Imperial  Government  and  have  been  instructed  to  state  the  view 
taken  by  that  Government  of  this  latest  law  and  to  ask  your  attention 
to  its  incompatibility  with  the  stipulations  of  the  treaty  exising  be- 
tween Germany  and  the  United  States. 

This  act  extends,  in  a  measure,  the  power  conferred  upon  the  Presi- 
dent by  section  14  of  the  act  of  June  26,  1884,  to  diminish  tonnage 
dues  in  certain  cases. 

According  to  the  act  of  1884  the  President  was  authorized,  only  in 


158  DIPLOMATIC  CORRESPONDENCE 

the  case  of  vessels  coming  from  the  ports  of  North  and  Central  Amer- 
ica, the  West  Indies,  the  Bahama,  Bermuda,  and  Sandwich  Islands,  or 
Newfoundland,  and  entering  ports  of  the  United  States,  to  reduce  the 
duty  of  3  cents  per  ton,  which  was  imposed  on  such  vessels,  provided 
that  the  said  duty  exceeded  the  dues  which  American  vessels  were 
obliged  to  pay  in  the  aforesaid  ports. 

A  reduction  of  the  duty  of  6  cents,  to  which  all  vessels  coming  from 
other  ports  were  subjected,  was  not  allowable,  even  on  the  supposition 
in  question. 

Vessels  from  the  aforesaid  favored  ports  thus  enjoyed  a  special 
preference  in  two  ways:  In  the  first  place,  they  paid  in  all  cases  a 
duty  of  but  3  cents  per  ton,  while  vessels  from  other  ports  were 
obliged  to  pay  6  cents  per  ton;  even  these  3  cents  could  be  remitted, 
either  in  whole  or  in  part,  provided  that  it  could  be  shown  that  the 
duty  paid  by  American  vessels  in  the  ports  concerned  amounted  to  less 
than  3  cents  per  ton,  or  that  no  such  duty  was  levied  in  said  ports. 
This  latter  privilege  is,  according  to  the  new  law,  no  longer  to  be 
exclusively  enjoyed  by  vessels  from  the  favored  ports. 

Likewise,  vessels  from  other  than  the  most  favored  ports  may  obtain 
a  reduction  or  return  of  the  duty  of  6  cents  to  be  paid  by  them  per 
ton,  provided  that  in  the  ports  from  which  they  have  come  American 
vessels  pay  less  than  6  cents  or  no  tonnage  duty  at  all.  The  amount 
of  the  duty  to  be  remitted  is  computed  according  to  the  amount  of  the 
duties  levied  in  the  ports  of  departure. 

The  new  law  is  evidently  based  upon  the  idea  of  reciprocity.  If 
this  idea  had  been  consistently  carried  out  no  objection  could  be 
made  to  it  and  the  Imperial  Government  would  have  no  further  ground 
of  complaint.  This,  however,  is  not  the  case,  inasmuch  as  the  new  law 
grants  special  privileges,  as  did  the  old,  to  vessels  from  the  above- 
mentioned  ports,  declaring  that  they,  without  any  compensation  on 
their  part,  shall  pay  but  3  cents  per  ton,  even  though  a  duty  in  excess 
of  that  amount  is  paid  by  American  vessels  in  the  ports  concerned. 
The  number  of  favored  ports  is  even  extended  to  those  of  South 
America  bordering  on  the  Caribbean  Sea. 

The  Imperial  Government  has  from  the  outset  protested  against  this 
one  sided  privilege,  which  is  in  violation  of  the  treaty  stipulations  of 
Germany  with  the  United  States.  Since  this  privilege  is  not  only  not 
abolished  by  the  new  law,  but  is  confirmed  and  even  still  further  ex- 
tended, the  original  attitude  assumed  by  the  Imperial  Government 


TONNAGE  DUES  159 

towards  the  old  law  has  been  in  no  wise  changed  by  the  new  act,  and 
the  Imperial  Government  must  continue  to  protest  against  the  viola- 
tions of  its  treaty  rights  while  maintaining  the  arguments  contained  in 
my  note  of  February  15,  1886.  As  long  as  vessels  from  the  ports  of 
North  and  Central  America  pay  but  one-half  the  tonnage  duty  that  is 
levied  upon  vessels  from  German  ports,  without  being  required  to 
furnish  proof  that  less  than  6  cents  is  exacted  from  American  vessels 
in  their  ports,  the  Imperial  Government  will  be  obliged  to  maintain 
its  claim  for  similar  usage,  viz.,  the  exemption  from  furnishing  such 
proof. 

As  is  stated  in  my  note  of  February  15,  1886,  the  Imperial  Govern- 
ment is  unable  to  regard  as  conclusive  your  principal  argument,  viz., 
that  the  privilege  in  question  is  of  a  purely  geographical  character, 
because  the  effect  of  this  privilege  is  to  benefit,  in  point  of  fact,  the 
entire  trade  and  navigation  of  those  countries  in  which  the  ports  in 
question  are  situated.  No  paramount  importance  can  be  attached  (as 
is  done  by  the  United  States  Government)  to  the  mere  form  in  which 
this  privilege  is  granted  to  particular  countries. 

I  am  therefore  instructed,  on  the  ground  of  the  treaty  right  per- 
taining to  the  Imperial  Government,  to  reiterate  its  previous  claim  that 
German  ports  shall  be  placed  on  a  footing  precisely  similar  to  that  of 
North  and  Central  American  ports,  etc.,  and  most  respectfully  to 
request  you,  Mr.  Secretary  of  State,  to  favor  me  with  the  further 
reply  which,  in  your  note  of  March  4,  you  gave  me  to  understand  that 
I  might  expect  from  you. 

Accept,  etc., 

H.  v.  ALVENSLEBEN. 


Case  of  the  William  P.  Frye1 

The  Secretary  of  State  to  Ambassador  Gerard 
[Telegram] 

No  1446.] 

DEPARTMENT  OF  STATE, 

Washington,  March  31,  1915. 

You  are  instructed  to  present  the  following  note  to  the  German 
Foreign  Office: 

Under  instructions  from  my  Government  I  have  the  honor  to  present 
a  claim  for  $228,059.54,  with  interest  from  January  28,  1915,  against 
the  German  Government  on  behalf  of  the  owners  and  captain  of  the 
American  sailing  vessel  William  P.  Frye  for  damages  suffered  by  them 
on  account  of  the  destruction  of  that  vessel  on  the  high  seas  by  the 
German  armed  cruiser  Prins  Eitel  Friedrich,  on  January  28,  1915. 

The  facts  upon  which  this  claim  arises  and  by  reason  of  which  the 
German  Government  is  held  responsible  by  the  Government  of  the 
United  States  for  the  attendant  loss  and  damages  are  briefly  as  follows : 

The  William  P.  Frye,  a  steel  sailing  vessel  of  3,374  tons  gross  ton- 
nage, owned  by  American  citizens  and  sailing  under  the  United  States 
flag  and  register,  cleared  from  Seattle,  Wash.,  November  4,  1914, 
under  charter  to  M.  H.  Houser,  of  Portland,  Oreg.,  bound  for  Queens- 
town,  Falmouth,  or  Plymouth  for  orders,  with  a  cargo  consisting  solely 
of  186,950  bushels  of  wheat  owned  by  the  aforesaid  Houser  and  con- 
signed "unto  order  or  to  its  assigns,"  all  of  which  appears  from  the 
ship's  papers  which  were  taken  from  the  vessel  at  the  time  of  her 
destruction  by  the  commander  of  the  German  cruiser. 

On  January  27,  1915,  the  Prins  Eitel  Friedrich  encountered  the  Frye 
on  the  high  seas,  compelled  her  to  stop,  and  sent  on  board  an  armed 
boarding  party,  who  took  possession.  After  an  examination  of  the 
ship's  papers  the  commander  of  the  cruiser  directed  that  the  cargo  be 
thrown  overboard,  but  subsequently  decided  to  destroy  the  vessel,  and 
on  the  following  morning,  by  his  order,  the  Frye  was  sunk. 

The  claim  of  the  owners  and  captain  consists  of  the  following  items : 

Value  of  ship,  equipment,  and  outfit $150,000.00 

Actual  freight  as  per  freight  list,  5034  1000/2240  tons  at 

32-6— £8180-19-6  at  $4.86   39,759.54 

1  Official  Print  of  the  Department  of  State. 


CASE  OF  THE  WILLIAM  P.  FRYE  161 

Traveling  and  other  expenses  of  Capt.  Kiehne  and  Arthur 
Sewall  &  Co.,  agents  of  ship,  in  connection  with  mak- 
ing affidavits,  preparing  and  filing  claim $500.00 

Personal  effects  of  Capt.  H.  H.  Kiehne 

Damages  covering  loss  due  to  deprivation  of  use  of  ship.  .       37,500.00 

Total   $228,059. 54 

By  direction  of  my  Government,  I  have  the  honor  to  request  that 
full  reparation  be  made  by  the  German  Government  for  the  destruction 
of  the  William  P.  Frye  by  the  German  cruiser  Prins  Eitel  Friedrich. 

BRYAN. 


No.  1984.] 

AMERICAN  EMBASSY, 

Berlin,  April  5,  1915. 

The  following  is  translation  of  the  reply  of  the  Foreign  Office  to  my 
note  of  April  3  : 

GERMAN  FOREIGN  OFFICE, 

Berlin,  April  5,  1915. 

The  undersigned  has  the  honor  to  make  reply  to  the  note  of  his 
Excellency,  Mr.  James  W.  Gerard,  Ambassador,  the  United  States  of 
America,  dated  the  3d  instant,  foreign  office  No.  2892,  relative  to  claims 
for  damages  for  the  sinking  of  the  American  merchant  vessel  William 
P.  Frye  by  the  German  auxiliary  cruiser  Prins  Eitel  Friedrich. 

According  to  the  reports  which  have  reached  the  German  Govern- 
ment the  commander  of  the  Prins  Eitel  Friedrich  stopped  the  William 
P.  Frye  on  the  high  seas  January  27,  1915,  and  searched  her.  He  found 
on  board  a  cargo  of  wheat  consigned  to  Queenstown,  Falmouth,  or 
Plymouth  to  order.  After  he  had  first  tried  to  remove  the  cargo  from 
the  William  P.  Frye  he  took  the  ship's  papers  and  her  crew  on  board 
and  sank  ship. 

It  results  from  these  facts  that  the  German  commander  acted  quite 
in  accordance  with  the  principles  of  international  law  as  laid  down 
in  the  Declaration  of  London  and  the  German  prize  ordinance.  The 
ports  of  Queenstown,  Falmouth,  and  Plymouth,  whither  the  ship  vis- 
ited was  bound,  are  strongly  fortified  English  coast  places,  which,  more- 
over, serve  as  bases  for  the  British  naval  forces.  The  cargo  of  wheat 
being  food  or  foodstuffs,  was  conditional  contraband  within  the 
meaning  of  Article  24,  No.  1,  of  the  Declaration  of  London,  and  Article 
23,  No.  1,  of  the  German  prize  ordinance,  and  was  therefore  to  be 


162  DIPLOMATIC  CORRESPONDENCE 

considered  as  destined  for  the  armed  forces  of  the  enemy,  pursuant 
to  Articles  33  and  34  of  the  Declaration  of  London  and  Articles  32  and 
33  of  the  German  prize  ordinance,  and  to  be  treated  as  contraband 
pending  proof  of  the  contrary.  This  proof  was  certainly  not  capable 
of  being  adduced  at  the  time  of  the  visiting  of  the  vessel,  since  the 
cargo  papers  read  to  order.  This,  however,  furnished  the  conditions 
under  which,  pursuant  to  Article  49  of  the  Declaration  of  London 
and  Article  113  of  the  German  prize  ordinance  the  sinking  of  the  ship 
was  permissible,  since  it  was  not  possible  for  the  auxiliary  cruiser  to 
take  the  prize  into  a  German  port  without  involving  danger  to  its  own 
security  or  the  success  of  its  operations.  The  duties  devolving  upon 
the  cruiser  before  destruction  of  the  ship,  pursuant  to  Article  50  of 
the  Declaration  of  London  and  Article  116  of  the  German  prize  ordi- 
nance, were  fulfilled  by  the  cruiser  in  that  it  took  on  board  all  the 
persons  found  on  the  sailing  vessel,  as  well  as  the  ship's  papers. 

The  legality  of  the  measures  taken  by  the  German  commander  is 
furthermore  subject  to  examination  by  the  German  Prize  Court  pur- 
suant to  Article  51  of  the  Declaration  of  London  and  section  1,  No.  2, 
of  the  German  Code  of  Prize  Procedure.  These  prize  proceedings  will 
be  instituted  before  the  Prize  Court  at  Hamburg  as  soon  as  the  ship's 
papers  are  received  and  will  comprise  the  settlement  of  questions 
whether  the  destruction  of  the  cargo  and  the  ship  was  necessary  within 
the  meaning  of  Article  49  of  the  Declaration  of  London ;  whether  the 
property  sunk  was  liable  to  capture;  and  whether,  or  to  what  extent, 
indemnity  is  to  be  awarded  the  owners.  In  the  trial  the  owners  of 
ship  and  cargo  would  be  at  liberty,  pursuant  to  Article  34,  paragraph  3, 
of  the  Declaration  of  London,  to  adduce  proof  that  the  cargo  of  wheat 
had  an  innocent  destination  and  did  not,  therefore,  have  the  character 
of  contraband.  If  such  proof  is  not  adduced,  the  German  Government 
would  not  be  liable  for  any  compensation  whatever,  according  to  the 
general  principles  of  international  law. 

However,  the  legal  situation  is  somewhat  different  in  the  light  of 
the  special  stipulations  applicable  to  the  relations  between  Germany 
and  the  United  States  since  Article  13  of  the  Prussian- American  treaty 
of  friendship  and  commerce  of  July  11,  1799,  taken  in  connection 
with  Article  12  of  Prussian-American  treaty  of  commerce  and  navi- 
gation of  May  1,  1828,  provides  that  contraband  belonging  to  the  sub- 
jects or  citizens  of  either  party  can  not  be  confiscated  by  the  other 
in  any  case  but  only  detained  or  used  in  consideration  of  payment  of 
the  full  value  of  the  same.  On  the  ground  of  this  treaty  stipulation 
which  is  as  a  matter  of  course  binding  on  the  German  Prize  Court  the 
American  owners  of  ship  and  cargo  would  receive  compensation  even 
if  the  court  should  declare  the  cargo  of  wheat  to  be  contraband.  Never- 
theless the  approaching  prize  proceedings  are  not  rendered  superfluous 
since  the  competent  Prize  Court  must  examine  into  the  legality  of  the 


CASE  OF  THE  WILLIAM  P.  FRYE  163 

capture  and  destruction  and  also  pronounce  upon  the  standing  of  the 
claimants  and  the  amount  of  indemnity. 

The  undersigned  begs  to  suggest  that  the  ambassador  bring  the  above 
to  the  knowledge  of  his  Government  and  avails  himself,  etc. 

(Signed)     JAGOW. 
April  4,  1915. 

GERARD. 


The  Secretary  of  State  to  Ambassador  Gerard 
No.  1583.] 

DEPARTMENT  OF  STATE, 
Washington,  April  28,  1915. 

You  are  instructed  to  present  the  following  note  to  the  German 
Foreign  Office: 

In  reply  to  your  Excellency's  note  of  the  5th  instant,  which  the 
Government  of  the  United  States  understands  admits  the  liability  of 
the  Imperial  German  Government  for  the  damages  resulting  from  the 
sinking  of  the  American  sailing  vessel  William  P.  Frye  by  the  German 
auxiliary  cruiser  Prim  Eitel  Friedrich  on  January  28  last,  I  have  the 
honor  to  say,  by  direction  of  my  Government,  that  while  the  prompt- 
ness with  which  the  Imperial  German  Government  has  admitted  its 
liability  is  highly  appreciated,  my  Government  feels  that  it  would  be 
inappropriate  in  the  circumstances  of  this  case,  and  would  involve 
unnecessary  delay  to  adopt  the  suggestion  in  your  note  that  the  legality 
of  the  capture  and  destruction,  the  standing  of  the  claimants,  and  the 
amount  of  indemnity  should  be  submitted  to  a  Prize  Court. 

Unquestionably  the  destruction  of  this  vessel  was  a  violation  of  the 
obligations  imposed  upon  the  Imperial  German  Government  under 
existing  treaty  stipulations  between  the  United  States  and  Prussia, 
and  the  United  States  Government,  by  virtue  of  its  treaty  rights,  has 
presented  to  the  Imperial  German  Government  a  claim  for  indemnity 
on  account  of  the  resulting  damages  suffered  by  American  citizens. 
The  liability  of  the  Imperial  German  Government  and  the  standing 
of  the  claimants  as  American  citizens  and  the  amount  of  indemnity  are 
all  questions  which  lend  themselves  to  diplomatic  negotiation  between 
the  two  Governments,  and  happily  the  question  of  liability  has  already 
been  settled  in  that  way.  The  status  of  the  claimants  and  the  amount 
of  the  indemnity  are  the  only  questions  remaining  to  be  settled,  and  it 
is  appropriate  that  they  should  be  dealt  with  in  the  same  way. 

The  Government  of  the  United  States  fully  understands  that,  as 
stated  in  your  Excellency's  note,  the  German  Government  is  liable 
under  the  treaty  provisions  above  mentioned  for  the  damages  arising 
from  the  destruction  of  the  cargo  as  well  as  from  the  destruction  of 


164  DIPLOMATIC  CORRESPONDENCE 

the  vessel.  But  it  will  be  observed  that  the  claim  under  discussion 
does  not  include  damages  for  the  destruction  of  the  cargo,  and  the 
question  of  the  value  of  the  cargo  therefore  is  not  involved  in  the 
present  discussion. 

The  Government  of  the  United  States  recognizes  that  the  German 
Government  will  wish  to  be  satisfied  as  to  the  American  ownership  of 
the  vessel,  and  the  amount  of  the  damages  sustained  in  consequence 
of  her  destruction. 

These  matters  are  readily  ascertainable  and  if  the  German  Govern- 
ment desires  any  further  evidence  in  substantiation  of  the  claim  on 
these  points  in  addition  to  that  furnished  by  the  ship's  papers,  which 
are  already  in  the  possession  of  the  German  Government,  any  additional 
evidence  found  necessary  will  be  produced.  In  that  case,  however, 
inasmuch  as  any  evidence  which  the  German  Government  may  wish  to 
have  produced  is  more  accessible  and  can  more  conveniently  be  ex- 
amined in  the  United  States  than  elsewhere,  on  account  of  the  presence 
there  of  the  owners  and  captain  of  the  William  P.  Frye  and  their 
documentary  records,  and  other  possible  witnesses,  the  Government 
of  the  United  States  ventures  to  suggest  the  advisability  of  transferring 
the  negotiations  for  the  settlement  of  these  points  to  the  Imperial 
German  Embassy  at  Washington. 

In  view  of  the  admission  of  liability  by  reason  of  specific  treaty 
stipulations,  it  has  become  unnecessary  to  enter  into  a  discussion  of 
the  meaning  and  effect  of  the  Declaration  of  London,  which  is  given 
some  prominence  in  your  Excellency's  note  of  April  5,  further  than 
to  say  that,  as  the  German  Government  has  already  been  advised,  the 
Government  of  the  United  States  does  not  regard  the  Declaration 
of  London  as  in  force. 

BRYAN. 


Ambassador  Gerard  to  the  Secretary  of  State 

[Telegram] 
No.  2391.] 

AMERICAN  EMBASSY, 

Berlin,  June  7,  1915. 

The  following  is  the  text  of  the  reply  of  the  German  Government 
in  the  Frye  case: 

The  undersigned  has  the  honor  to  make  the  following  reply  to  the 
note  of  his  Excellency  Mr.  James  W.  Gerard,  Ambassador  of  the 
United  States  of  America,  dated  April  30,  1915  (F.  O.  No.  3291),  on 
the  subject  of  the  sinking  of  the  American  sailing  vessel  William  P. 
Frye  by  the  German  auxiliary  cruiser  Prinz  Eitel  Friedrich: 


CASE  OF  THE  WILLIAM  P.  FRYE  165 

The  German  Government  can  not  admit  that,  as  the  American 
Government  assumes,  the  destruction  of  the  sailing  vessel  mentioned 
constitutes  a  violation  of  the  treaties  concluded  between  Prussia  and 
the  United  States  at  an  earlier  date  and  now  applicable  to  the  relations 
between  the  German  Empire  and  the  United  States  or  of  the  American 
rights  derived  therefrom.  For  these  treaties  did  not  have  the  intention 
of  depriving  one  of  the  contracting  parties  engaged  in  war  of  the 
right  of  stopping  the  supply  of  contraband  to  his  enemy  when  he 
recognizes  the  supply  of  such  articles  as  detrimental  to  his  military 
interests.  On  the  contrary,  Article  13  of  the  Prussian-American 
Treaty  of  July  11,  1799,  expressly  reserves  to  the  party  at  war  the 
right  to  stop  the  carrying  of  contraband  and  to  detain  the  contraband ; 
it  follows  then  that  if  it  can  not  be  accomplished  in  any  other  way, 
the  stopping  of  the  supply  may  in  the  extreme  case  be  effected  by  the 
destruction  of  the  contraband  and  of  the  ship  carrying  it.  As  a  matter 
of  course,  the  obligation  of  the  party  at  war  to  pay  compensation  to 
the  interested  persons  of  the  neutral  contracting  party  remains  in  force 
whatever  be  the  manner  of  stopping  the  supply. 

According  to  general  principles  of  international  law,  any  exercise 
of  the  right  of  control  over  the  trade  in  contraband  is  subject  to  the 
decision  of  the  Prize  Courts,  even  though  such  right  may  be  restricted 
by  special  treaties.  At  the  beginning  of  the  present  war  Germany, 
pursuant  to  these  principles,  established  by  law  prize  jurisdiction  for 
cases  of  the  kind  under  consideration.  The  case  of  the  William  P. 
Frye  is  likewise  subject  to  the  German  prize  jurisdiction,  for  the 
Prussian-American  Treaties  mentioned  contain  no  stipulation  as  to 
how  the  amount  of  the  compensation  provided  by  Article  13  of  the 
treaty  cited  is  to  be  fixed.  The  German  Government,  therefore,  com- 
plies with  its  treaty  obligations  to  a  full  extent  when  the  Prize  Courts 
instituted  by  it  in  accordance  with  international  law  proceed  in  pur- 
suance of  the  treaty  stipulations  and  thus  award  the  American  inter- 
ested persons  equitable  indemnity.  There  would,  therefore,  be  no 
foundation  for  a  claim  of  the  American  Government,  unless  the  Prize 
Courts  should  not  grant  indemnity  in  accordance  with  the  treaty;  in 
such  an  event,  however,  the  German  Government  would  not  hesitate 
to  arrange  for  equitable  indemnity  notwithstanding.  For  the  rest,  prize- 
proceedings  in  the  case  of  the  Frye  are  indispensable,  apart  from  the 
American  claims,  for  the  reason  that  other  claims  of  neutral  and 
enemy  interested  parties  are  to  be  considered  in  the  matter. 

As  was  stated  in  the  note  of  April  4  last,  the  Prize  Court  will  have 
to  decide  the  questions  whether  the  destruction  of  the  ship  and  cargo 
was  legal ;  whether  and  under  what  conditions  the  property  sunk  was 
liable  to  confiscation,  and  to  whom  and  in  what  amount  indemnity  is 
to  be  paid  provided  application  therefor  is  received.  Since  the  decision 
of  the  Prize  Court  must  first  be  awaited  before  any  further  position 
is  taken  by  the  German  Government,  the  simplest  way  for  the  American 


166  DIPLOMATIC  CORRESPONDENCE 

interested  parties  to  settle  their  claims  would  be  to  enter  them  in  the 
competent  quarter  in  accordance  with  the  provisions  of  the  German 
Code  of  Prize  Procedure. 

The  undersigned  begs  to  suggest  that  the  ambassador  bring  the 
above  to  the  knowledge  of  his  Government,  and  avails  himself  at  the 
same  time  of  the  opportunity  to  renew  the  assurances  of  his  most  dis- 
tinguished consideration. 

(Signed)     V.  JAGOW. 

GERARD. 


The  Secretary  of  State  to  Ambassador  Gerard 

[Telegram] 
No.  1868.] 

DEPARTMENT  OF  STATE, 

Washington,  June  24,  1915. 

You  are  instructed  to  present  the  following  note  to  the  German 
Minister  of  Foreign  Affairs : 

I  have  the  honor  to  inform  your  Excellency  that  I  duly  communi- 
cated to  my  Government  your  note  of  the  7th  instant  on  the  subject 
of  the  claim  presented  in  my  note  of  April  3d  last,  on  behalf  of  the 
owners  and  captain  of  the  American  sailing  vessel  William,  P.  Frye 
in  consequence  of  her  destruction  by  the  German  auxiliary  cruiser 
Prim  Eitel  Friedrich. 

In  reply  I  am  instructed  by  my  Government  to  say  that  it  has  care- 
fully considered  the  reasons  given  by  the  Imperial  German  Govern- 
ment for  urging  that  this  claim  should  be  passed  upon  by  the  German 
Prize  Court  instead  of  being  settled  by  direct  diplomatic  discussion 
between  the  two  Governments,  as  proposed  by  the  Government  of  the 
United  States,  and  that  it  regrets  to  find  that  it  can  not  concur  in  the 
conclusions  reached  by  the  Imperial  German  Government. 

As  pointed  out  in  my  last  note  to  you  on  this  subject,  dated  April 
30,  the  Government  of  the  United  States  has  considered  that  the  only 
question  under  discussion  was  the  method  which  should  be  adopted  for 
ascertaining  the  amount  of  the  indemnity  to  be  paid  under  an  admitted 
liability,  and  it  notes  with  surprise  that  in  addition  to  this  question  the 
Imperial  German  Government  now  desires  to  raise  some  questions  as  to 
the  meaning  and  effect  of  the  treaty  stipulations  under  which  it  has 
admitted  its  liability. 

If  the  Government  of  the  United  States  correctly  understands  the 
position  of  the  Imperial  German  Government  as  now  presented,  it  is 
that  the  provisions  of  Article  13  of  the  treaty  of  1799  between  the 
United  States  and  Prussia,  which  is  continued  in  force  by  the  treaty 


CASE  OF  THE  WILLIAM  P.  FRYE  167 

of  1828,  justified  the  commander  of  the  Frinz  Eitel  Friedrich  in  sink- 
ing the  William  P.  Frye,  although  making  the  Imperial  German  Gov- 
ernment liable  for  the  damages  suffered  in  consequence,  and  that  inas- 
much as  the  treaty  provides  no  specific  method  for  ascertaining  the 
amount  of  indemnity  to  be  paid,  that  question  must  be  submitted 
to  the  German  Prize  Court  for  determination. 

The  Government  of  the  United  States,  on  the  other  hand,  does  not 
find  in  the  treaty  stipulations  mentioned  any  justification  for  the 
sinking  of  the  Frye,  and  does  not  consider  that  the  German  Prize 
Court  has  any  jurisdiction  over  the  question  of  the  amount  of  in- 
demnity to  be  paid  by  the  Imperial  German  Government  on  account 
of  its  admitted  liability  for  the  destruction  of  an  American  vessel  on 
the  high  seas. 

You  state  in  your  note  of  the  7th  instant  that  Article  13  of  the 
above-mentioned  treaty  of  1799  "expressly  reserves  to  the  party  at  war 
the  right  to  stop  the  carrying  of  contraband  and  to  detain  the  contra- 
band ;  it  follows  then  that  if  it  can  not  be  accomplished  in  any  other 
way,  the  stopping  of  the  supply  may  in  the  extreme  case  be  effected 
by  the  destruction  of  the  contraband  and  of  the  ship  carrying  it." 

The  Government  of  the  United  States  can  not  concur  in  this  conclu- 
sion. On  the  contrary,  it  holds  {hat  these  treaty  provisions  do  not 
authorize  the  destruction  of  a  neutral  vessel  in  any  circumstances.  By 
its  express  terms  the  treaty  prohibits  even  the  detention  of  a  neutral 
vessel  carrying  contraband  if  the  master  of  the  vessel  is  willing  to 
surrender  the  contraband.  Article  13  provides  "in  the  case  supposed 
of  a  vessel  stopped  for  articles  of  contrabands  if  the  master  of  the 
vessel  stopped  will  deliver  out  the  goods  supposed  to  be  of  contraband 
nature,  he  shall  be  admitted  to  do  it,  and  the  vessel  shall  not  in  that 
case  be  carried  into  any  port,  nor  further  detained,  but  shall  be  allowed 
to  proceed  on  her  voyage." 

In  this  case  the  admitted  facts  show  that  pursuant  to  orders  from 
the  commander  of  the  German  cruiser,  the  master  of  the  Frye  under- 
took to  throw  overboard  the  cargo  of  that  vessel,  but  that  before  the 
work  of  delivering  out  the  cargo  was  finished  the  vessel  with  the  cargo 
was  sunk  by  order  of  the  German  commander. 

For  these  reasons,  even  if  it  be  assumed  as  your  Excellency  has 
done,  that  the  cargo  was  contraband,  your  contention  that  the  destruc- 
tion of  the  vessel  was  justified  by  the  provisions  of  Article  13  does 
not  seem  to  be  well  founded.  The  Government  of  the  United  States 
has  not  thought  it  necessary  in  the  discussion  of  this  case  to  go  into 
the  question  of  the  contraband  or  non-contraband  character  of  the 
cargo.  The  Imperial  German  Government  has  admitted  that  this  ques- 
tion makes  no  difference  so  far  as  its  liability  for  damages  is  concerned, 
and  the  result  is  the  same  so  far  as  the  justification  for  the  sinking  of 
the  vessel  is  concerned.  As  shown  above,  if  we  assume  that  the  cargo 
was  contraband,  the  master  of  the  Frye  should  have  been  allowed  to 


168  DIPLOMATIC  CORRESPONDENCE 

deliver  it  out,  and  the  vessel  should  have  been  allowed  to  proceed  on 
her  voyage. 

On  the  other  hand,  if  we  assume  that  the  cargo  was  non-contraband, 
the  destruction  either  of  the  cargo  or  the  vessel  could  not  be  justified 
in  the  circumstances  of  this  case  under  any  accepted  rule  of  interna- 
tional law.  Attention  is  also  called  to  the  provisions  of  Article  12  of 
the  treaty  of  1785  between  the  United  States  and  Prussia,  which, 
like  Article  13  of  the  treaty  of  1799,  was  continued  in  force  by  Article 
12  of  the  treaty  of  1828.  So  far  as  the  provisions  of  Article  12  of 
the  treaty  of  1785  apply  to  the  question  under  consideration,  they 
are  as  follows : 

"If  one  of  the  contracting  parties  should  be  engaged  in  war  with 
any  other  Power,  the  free  intercourse  and  commerce  of  the  subjects 
or  citizens  of  the  party  remaining  neuter  with  the  belligerent  Powers 
shall  not  be  interrupted.  On  the  contrary,  in  that  case,  as  in  full  peace, 
the  vessels  of  the  neutral  party  may  navigate  freely  to  and  from  the 
ports  and  on  the  coasts  of  the  belligerent  parties,  free  vessels  making 
free  goods,  insomuch  that  all  things  shall  be  adjudged  free  which  shall 
be  on  board  any  vessel  belonging  to  the  neutral  party,  although  such 
things  belong  to  an  enemy  of  the  other;  .  .  ." 

It  seems  clear  to  the  Government  of  the  United  States,  therefore, 
that  whether  the  cargo  of  the  Frye  is  regarded  as  contraband  or  as  non- 
contraband,  the  destruction  of  the  vessel  was,  as  stated  in  my  previous 
communication  on  this  subject,  "a  violation  of  the  obligations  imposed 
upon  the  Imperial  German  Government  under  existing  treaty  stipula- 
tions between  the  United  States  and  Prussia." 

For  these  reasons  the  Government  of  the  United  States  must  dis- 
agree with  the  contention  which  it  understands  is  now  made  by  the 
Imperial  German  Government  that  an  American  vessel  carrying  con- 
traband may  be  destroyed  without  liability  or  accountability  beyond 
the  payment  of  such  compensation  for  damages  as  may  be  fixed  by  a 
German  Prize  Court.  The,  issue  thus  presented  arises  on  a  disputed 
interpretation  of  treaty  provisions,  the  settlement  of  which  requires 
direct  diplomatic  discussion  between  the  two  Governments,  and  can 
not  properly  be  based  upon  the  decision  of  the  German  Prize  Court, 
which  is  in  no  way  conclusive  or  binding  upon  the  Government  of  the 
United  States. 

Moreover,  even  if  no  disputed  question  of  treaty  interpretation  was 
involved,  the  admission  by  the  Imperial  German  Government  of  its 
liability  for  damages  for  sinking  the  vessel  would  seem  to  make  it 
unnecessary,  so  far  as  this  claim  is  concerned,  to  ask  the  Prize  Court 
to  decide  "whether  the  destruction  of  the  ship  and  cargo  was  legal, 
and  whether  and  under  what  conditions  the  property  sunk  was  liable 
to  confiscation,"  which,  you  state  in  your  note  dated  June  7,  are  ques- 
tions which  should  be  decided  by  the  Prize  Court.  In  so  far  as  these 
questions  relate  to  the  cargo,  they  are  outside  of  the  present  discussion, 
because,  as  pointed  out  in  my  previous  note  to  you  on  the  subject 


CASE  OF  THE  WILLIAM  P.  FRYE  169 

dated  April  30,  "the  claim  under  discussion  does  not  include  damages 
for  the  destruction  of  the  cargo." 

The  real  question  between  the  two  Governments  is  what  reparation 
must  be  made  for  a  breach  of  treaty  obligations,  and  that  is  not  a 
question  which  falls  within  the  jurisdiction  of  a  Prize  Court. 

In  my  first  note  on  the  subject  the  Government  of  the  United 
States  requested  that  "full  reparation  be  made  by  the  Imperial  Ger- 
man Government  for  the  destruction  of  the  William  P.  Frye."  Repa- 
ration necessarily  includes  an  indemnity  for  the  actual  pecuniary  loss 
sustained,  and  the  Government  of  the  United  States  takes  this  oppor- 
tunity to  assure  the  Imperial  German  Government  that  such  an  in- 
demnity, if  promptly  paid,  will  be  accepted  as  satisfactory  reparation, 
but  it  does  not  rest  with  a  Prize  Court  to  determine  what  reparation 
should  be  made  or  what  reparation  would  be  satisfactory  to  the  Gov- 
ernment of  the  United  States. 

Your  Excellency  states  in  your  note  of  June  7  that  in  the  event  the 
Prize  Court  should  not  grant  indemnity  in  accordance  with  the  treaty 
requirements,  the  German  Government  would  not  hesitate  to  arrange 
for  equitable  indemnity,  but  it  is  also  necessary  that  the  Government 
of  the  United  States  should  be  satisfied  with  the  amount  of  the  in- 
demnity, and  it  would  seem  to  be  more  appropriate  and  convenient 
that  an  arrangement  for  equitable  indemnity  should  be  agreed  upon 
now  rather  than  later.  The  decision  of  the  Prize  Court,  even  on  the 
question  of  the  amount  of  indemnity  to  be  paid,  would  not  be  binding 
or  conclusive  on  the  Government  of  the  United  States. 

The  Government  of  the  United  States  also  dissents  from  the  view 
expressed  in  your  note  that  "there  would  be  no  foundation  for  a  claim 
of  the  American  Government  unless  the  Prize  Courts  should  not  grant 
indemnity  in  accordance  with  the  treaty."  The  claim  presented  by  the 
American  Government  is  for  an  indemnity  for  a  violation  of  a  treaty, 
in  distinction  from  an  indemnity  in  accordance  with  the  treaty,  and 
therefore  is  a  matter  for  adjustment  by  direct  diplomatic  discussion 
between  the  two  Governments  and  is  in  no  way  dependent  upon  the 
action  of  a  German  Prize  Court. 

For  the  reasons  above  stated  the  Government  of  the  United  States 
can  not  recognize  the  propriety  of  submitting  the  claim  presented  by  it 
on  behalf  of  the  owners  and  captain  of  the  Frye  to  the  German  Prize 
Court  for  settlement. 

The  Government  of  the  United  States  is  not  concerned  with  any 
proceedings  which  the  Imperial  German  Government  may  wish  to  take 
on  "other  claims  of  neutral  and  enemy  interested  parties"  which  have 
not  been  presented  by  the  Government  of  the  United  States,  but  which 
you  state  in  your  note  of  June  7  make  Prize  Court  proceedings  in  this 
case  indispensable,  and  it  does  not  perceive  the  necessity  for  post- 
poning the  settlement  of  the  present  claim  pending  the  consideration 
of  those  other  claims  by  the  Prize  Court. 


170  DIPLOMATIC  CORRESPONDENCE 

The  Government  of  the  United  States,  therefore,  suggests  that  the 
Imperial  German  Government  reconsider  the  subject  in  the  light  of 
these  considerations,  and  because  of  the  objections  against  resorting 
to  the  Prize  Court  the  Government  of  the  United  States  renews  its 
former  suggestion  that  an  effort  be  made  to  settle  this  claim  by  direct 
diplomatic  negotiations. 

LANSING. 


Ambassador  Gerard  to  the  Secretary  of  State 

[Telegram] 
No.  2656.] 

AMERICAN  EMBASSY, 

Berlin,  July  30,  1915. 
Following  note  received: 

FOREIGN  OFFICE,  Berlin,  July  30,  1915. 

The  undersigned  has  the  honor  to  inform  his  Excellency,  Mr. 
James  W.  Gerard,  Ambassador  of  the  United  States  of  America,  in 
reply  to  the  note  of  the  26th  ultimo,  Foreign  Office  No.  3990,  on  the 
subject  of  the  sinking  of  the  American  merchant  vessel  William  P. 
Frye  by  the  German  auxiliary  cruiser  Prins  Eitel  Friedrich,  that  the 
points  of  view  brought  out  in  the  note  have  been  carefully  examined 
by  the  Imperial  German  Government.  This  examination  has  led  to  the 
following  conclusions : 

The  Government  of  the  United  States  believes  that  it  is  incumbent 
upon  it  to  take  the  position  that  the  treaty  rights  to  which  America 
is  entitled,  as  contained  in  Article  12  of  the  Prussian-American  treaty 
of  amity  and  commerce  of  September  10,  1785,  in  Article  13  of  the 
Prussian-American  treaty  of  amity  and  commerce  of  July  11,  1799, 
were  violated  by  the  sinking  of  the  William  P.  Frye.  It  interprets 
these  articles  as  meaning  that  a  merchantman  of  the  neutral  contract- 
ing party  carrying  contraband  can  not  in  any  circumstances  be  de- 
stroyed by  a  war-ship  of  the  belligerent  contracting  party,  and  that 
the  sinking  of  the  William  P.  Frye  was,  therefore,  in  violation  of  the 
treaty,  even  if  her  cargo  should  have  consisted  of  contraband,  which 
it  leaves  outside  of  the  discussion. 

The  German  Government  can  not  accept  this  view.  It  insists  as 
heretofore  that  the  commander  of  the  German  auxiliary  cruiser  acted 
in  the  legal  exercise  of  the  right  of  control  of  trade  in  contraband 
enjoyed  by  war-ships  of  belligerent  nations,  and  that  the  treaty  stipu- 
lations mentioned  merely  oblige  the  German  Government  to  make  com- 
pensation for  the  damage  sustained  by  the  American  citizens  con- 
cerned. 

It  is  not  disputed  by  the  American  Government  that,  according  to 
general  principles  of  international  law,  a  belligerent  is  authorized  in 


CASE  OF  THE  WILLIAM  P.  FRYE  171 

sinking  neutral  vessels  under  almost  any  conditions  for  carrying  con- 
traband. As  is  well  known,  these  principles  were  laid  down  in  Articles 
49  and  50  of  the  Declaration  of  London,  and  were  recognized  at  that 
time  by  the  duly  empowered  delegates  of  all  the  nations  which  par- 
ticipated in  the  conference,  including  the  American  delegates,  to  be 
declarative  of  existing  international  law  (see  preliminary  clause  of 
the  Declaration  of  London)  ;  moreover,  at  the  beginning  of  the  present 
war,  the  American  Government  proposed  to  the  belligerent  nations  to 
ratify  the  Declaration  of  London  and  give  its  provisions  formal  validity 
also. 

The  German  Government  has  already  explained  in  its  note  of  April 
4  last  for  what  reasons  it  considers  that  the  conditions  justifying  the 
sinking  under  international  law  were  present  in  the  case  of  the 
William  P.  Frye.  The  cargo  consisted  of  conditional  contraband,  the 
destination  of  which  for  the  hostile  armed  forces  was  to  be  presumed 
under  the  circumstances ;  no  proof  to  overcome  this  presumption  has 
been  furnished.  More  than  half  the  cargo  of  the  vessel  was  contra- 
band, so  that  the  vessel  was  liable  to  confiscation.  The  attempt  to 
bring  the  American  vessel  into  a  German  port  would  have  greatly 
imperiled  the  German  vessel  in  the  given  situation  of  the  war,  and  at 
any  rate  practically  defeated  the  success  of  her  further  operations. 
Thus  the  authority  for  sinking  the  vessel  was  given  according  to  gen- 
eral principles  of  international  law. 

There  only  remains  then  to  be  examined  the  question  how  far  the 
Prussian-American  treaty  stipulations  modify  these  principles  of  in- 
ternational law. 

In  this  connection  Article  12  of  the  treaty  of  1785  provides  that  in 
the  event  of  a  war  between  one  of  the  contracting  parties  with  an- 
other Power  the  free  commerce  and  intercourse  of  the  nationals  of  the 
party  remaining  neutral  with  the  belligerent  Powers  shall  not  be  inter- 
rupted, but  that  on  the  contrary  the  vessel  of  the  neutral  party  may 
navigate  freely  to  and  from  the  ports  of  the  belligerent  Powers,  even 
neutralizing  enemy  goods  on  board  thereof.  However,  this  article 
merely  formulates  general  rules  for  the  freedom  of  maritime  inter- 
course and  leaves  the  question  of  contraband  untouched;  the  specific 
stipulations  on  this  point  are  contained  in  the  following  article,  which 
is  materially  identical  with  Article  13  of  the  treaty  of  1799  now  in 
force. 

The  plain  intention  of  Article  13  is  to  establish  a  reasonable  com- 
promise between  the  military  interests  of  the  belligerent  contracting 
party  and  the  commercial  interests  of  the  neutral  party.  On  the  one 
hand  the  belligerent  party  is  to  have  the  right  to  prevent  the  trans- 
portation of  war  supplies  to  his  adversaries  even  when  carried  on  ves- 
sels of  the  neutral  party;  on  the  other  hand  the  commerce  and  navi- 
gation of  the  neutral  party  is  to  be  interfered  with  as  little  as  possible 
by  the  measures  necessary  for  such  prevention,  and  reasonable  com- 


172  DIPLOMATIC  CORRESPONDENCE 

pensation  is  to  be  paid  for  any  inconvenience  or  damage  which  may 
nevertheless  ensue  from  the  proceeding  of  the  belligerent  party. 

Article  13  recites  the  following  means  whereby  the  belligerent  party 
can  prevent  the  vessels  of  the  neutral  party  from  carrying  war  sup- 
plies to  his  adversary.  The  detention  of  the  ship  and  cargo  for  such 
length  of  time  as  the  belligerent  may  think  necessary ;  furthermore  the 
taking  over  of  the  war  stores  for  his  own  use,  paying  the  full  value  of 
the  same  as  ascertained  at  the  place  of  destination.  The  right  of 
sinking  is  not  mentioned  in  the  treaty  and  is  therefore  neither  ex- 
pressly permitted  nor  expressly  prohibited,  so  that  on  this  point  the 
party  stipulations  must  be  supplemented  by  the  general  rules  of  inter- 
national law.  From  the  meaning  and  spirit  of  the  treaty  it  really  ap- 
pears out  of  the  question  that  it  was  intended  to  expect  of  the  bel- 
ligerent that  he  should  permit  a  vessel  loaded  with  contraband,  for 
example  a  shipment  of  arms  and  ammunition  of  decisive  importance 
for  the  outcome  of  the  war,  to  proceed  unhindered  to  his  enemy  when 
circumstances  forbid  the  carrying  of  the  vessel  into  port,  if  the  gen- 
eral rules  of  international  law  allow  sinking  of  the  vessel. 

The  remaining  stipulations  of  Article  13  must  likewise  be  con- 
sidered in  this  light;  they  provide  that  the  captain  of  a  vessel  stopped 
shall  be  allowed  to  proceed  on  his  voyage  if  he  delivers  out  the  con- 
traband to  the  war-ship  which  stopped  his  vessel.  For  such  deliver- 
ing out  can  not  of  course  be  considered  when  the  ensuing  loss  of  time 
imperils  either  the  war-ship  herself  or  the  success  of  her  other  opera- 
tions. In  the  case  of  the  William  P.  Frye  the  German  commander  at 
first  tried  to  have  matters  settled  by  the  delivery  of  contraband,  but 
convinced  himself  of  the  impracticability  of  this  attempt  in  that  it 
would  expose  his  ship  to  attack  by  whatever  superior  force  of  enemy 
war  vessels  pursuing  him  and  was  accordingly  obliged  to  determine 
upon  the  sinking  of  the  Frye.  Thus  he  did  not  exceed  on  this  point 
the  limits  to  which  he  was  bound  by  Article  13. 

However,  Article  13  asserts  itself  here  to  the  extent  that  it  founds 
the  obligation  to  compensate  the  American  citizens  affected,  whereas 
according  to  the  general  rules  of  international  law  the  belligerent  party 
does  not  need  to  grant  compensation  for  a  vessel  lawfully  sunk.  For 
if,  by  Article  13,  the  mere  exercise  of  right  of  highways  makes  the 
belligerent  liable  for  compensation,  this  must  apply  a  fortiori  to  the 
exercise  of  the  right  of  sinking. 

The  question  whether  the  German  commander  acted  leofallv  was 
primarily  a  subject  for  the  consideration  of  the  German  Prize  Courts 
according  to  general  principles  of  international  law  as  laid  down; 
also  in  Article  1  of  The  Hague  Convention  for  the  establishment  of 
an  international  Prize  Court  and  in  Article  51  of  the  Declaration  of 
London.  The  German  Government  consequently  laid  the  case  of 
William  P.  Frye  before  the  competent  Prize  Court  at  Hamburg,  as  was 
stated  in  its  note  of  the  7th  ultimo.  This  court  found  by  its  judg- 


CASE  OF  THE  WILLIAM  P.  FRYE  173 

ment  of  the  10th  instant  that  the  cargo  of  the  American  vessel  William 
P.  Frye  was  contraband,  that  the  vessel  could  not  be  carried  into  port, 
and  that  the  sinking  was  therefore  justified;  at  the  same  time  the 
court  expressly  recognized  the  validity  of  the  Prussian-American 
treaty  stipulations  severally  mentioned  for  the  relations  between  the 
German  Empire  and  America,  so  that  the  sinking  of  the  ship  and 
cargo,  so  far  as  American  property,  makes  the  German  Empire  liable 
for  indemnity.  The  Prize  Court  was  unable  to  fix  the  indemnity  itself, 
since  it  had  no  data  before  it,  failing  the  receipt  of  the  necessary- 
detail  from  the  parties  interested. 

It  will  now  be  necessary  to  settle  these  points  in  a  different  way. 
The  German  Government  suggests  as  the  simplest  way  that  each  of 
the  two  Governments  designate  an  expert,  and  that  the  two  experts 
jointly  fix  the  amount  of  indemnity  for  the  vessel  and  any  American 
property  which  may  have  been  sunk  with  her.  The  German  Govern- 
ment will  promptly  pay  the  amount  of  indemnity  thus  ascertained;  it 
expressly  declares,  however,  reverting  to  what  has  been  stated  above, 
that  this  payment  does  not  constitute  satisfaction  for  the  violation  of 
American  treaty  rights,  but  a  duty  or  policy  of  this  Government 
founded  on  the  existing  treaty  stipulations. 

Should  the  American  Government  not  agree  to  this  manner  of  set- 
tling the  matter,  the  German  Government  is  prepared  to  submit  the 
difference  of  opinion  as  being  a  question  of  the  interpretation  of  the 
existing  treaties  between  Germany  and  the  United  States  to  the  tri- 
bunal at  The  Hague,  pursuant  to  Article  38  of  The  Hague  Convention 
for  the  pacific  settlement  of  international  disputes. 

The  undersigned  begs  to  suggest  that  the  Ambassador  bring  the 
above  to  the  attention  of  his  Government  and  avails  himself,  etc., 

VON  JAGOW. 

GERARD. 


The  Secretary  of  State  to  Ambassador  Gerard 

[Telegram] 
No.  2057.]  DEPARTMENT  OF  STATE, 

Washington,  August  10,  1915. 

You  are  instructed  to  present  the  following  note  to  the  German 
Minister  for  Foreign  Affairs : 

Under  instructions  from  my  Government,  I  have  the  honor  to  in- 
form your  Excellency  in  reply  to  your  note  of  July  30  in  regard  to  the 
claim  for  reparation  for  the  sinking  of  the  William  P.  Frye,  that  the 
Government  of  the  United  States  learns  with  regret  that  the  objec- 


174  DIPLOMATIC  CORRESPONDENCE 

tions  urged  by  it  against  the  submission  of  this  case  to  the  Prize  Court 
for  decision  have  not  commended  themselves  to  the  Imperial  German 
Government,  and  it  equally  regrets  that  the  reasons  presented  by  the 
Imperial  German  Government  for  submitting  this  case  to  the  Prize 
Court  have  failed  to  remove  the  objections  of  the  Government  of  the 
United  States  to  the  adoption  of  that  course.  As  this  disagreement 
has  been  reached  after  the  full  presentation  of  the  views  of  both  Gov- 
ernments in  our  previous  correspondence,  a  further  exchange  of  views 
on  the  questions  in  dispute  would  doubtless  be  unprofitable,  and  the 
Government  of  the  United  States  therefore  welcomes  your  Excel- 
lency's suggestion  that  some  other  way  should  be  found  for  settling 
this  case. 

The  two  methods  of  settlement  proposed  as  alternative  suggestions 
in  your  Excellency's  note  have  been  given  careful  consideration,  and 
it  is  believed  that  if  they  can  be  combined  so  that  they  may  both  be 
adopted,  they  will  furnish  a  satisfactory  basis  for  the  solution  of  the 
questions  at  issue. 

The  Government  of  the  United  States  has  already  expressed  its  de- 
sire that  the  question  of  the  amount  of  indemnity  to  be  paid  by  the 
Imperial  German  Government  under  its  admitted  liability  for  the  losses 
of  the  owners  and  captain  on  account  of  the  destruction  of  the  Frye 
should  be  settled  by  diplomatic  negotiation,  and  it  entirely  concurs  with 
the  suggestion  of  the  Imperial  German  Government  that  the  simplest 
way  would  be  to  agree,  as  proposed  in  your  note,  "that  each  of  the  two 
Governments  designate  an  expert  and  that  the  two  experts  jointly  fix 
the  amount  of  indemnity  for  the  vessel  and  any  American  property 
which  may  have  been  sunk  with  her,"  to  be  paid  by  the  Imperial  Ger- 
man Government  when  ascertained  as  stated  in  your  note.  It  is  as- 
sumed that  the  arrangement  will  include  some  provision  for  calling 
in  an  umpire  in  case  the  experts  fail  to  agree. 

The  Government  of  the  United  States  notes  that  your  suggestion  is 
made  with  the  express  reservation  that  a  payment  under  this  arrange- 
ment would  not  constitute  an  admission  that  American  treaty  rights 
had  been  violated,  but  would  be  regarded  by  the  Imperial  German 
Government  merely  as  fulfilling  a  duty  or  policy  founded  on  existing 
treaty  stipulations.  A  payment  made  on  this  understanding  would  be 
entirely  acceptable  to  the  Government  of  the  United  States,  provided 
that  the  acceptance  of  such  payment  should  likewise  be  understood  to 
be  without  prejudice  to  the  contention  of  the  Government  of  the 
United  States  that  the  sinking  of  the  Frye  was  without  legal  justifica- 
tion, and  provided  also  that  an  arrangement  can  be  agreed  upon  for 
the  immediate  submission  to  arbitration  of  the  question  of  legal  justi- 
fication, in  so  far  as  it  involves  the  interpretation  of  existing  treaty 
stipulations. 

There  can  be  no  difference  of  opinion  between  the  two  Governments 
as  to  the  desirability  of  having  this  question  of  the  true  intent  and 


CASE  OF  THE  WILLIAM  P.  FRYE  175 

meaning  of  their  treaty  stipulations  determined  without  delay,  and  to 
that  end  the  Government  of  the  United  States  proposes  that  the  altern- 
ative suggestion  of  the  Imperial  German  Government  also  be  adopted, 
so  that  this  question  of  treaty  interpretation  can  be  submitted  forth- 
with to  arbitration  pursuant  to  Article  38  of  The  Hague  Convention 
for  the  pacific  settlement  of  international  disputes. 

In  this  way  both  the  question  of  indemnity  and  the  question  of  treatv 
interpretation  can  promptly  be  settled,  and  it  will  be  observed  that  the 
only  change  made  in  the  plan  proposed  by  the  Imperial  German  Gov- 
ernment is  that  instead  of  eliminating  either  one  of  its  alternative  sug- 
gestions, they  are  both  given  effect  in  order  that  both  of  the  questions 
under  discussion  may  be  dealt  with  at  the  same  time. 

If  this  proposal  proves  acceptable  to  the  Imperial  German  Govern- 
ment, it  will  be  necessary  also  to  determine  whether,  pending  the  ar- 
bitral award,  the  Imperial  German  Government  shall  govern  its  naval 
operations  in  accordance  with  its  own  interpretation,  or  in  accordance 
with  the  interpretation  maintained  by  the  United  States,  as  to  the 
obligations  imposed  by  their  treaty  stipulations,  and  the  Government 
of  the  United  States  would  be  glad  to  have  an  expression  of  the  views 
of  the  Imperial  German  Government  on  this  point. 

LANSING. 


Ambassador  Gerard  to  the  Secretary  of  State 
[Telegram] 

AMERICAN  EMBASSY, 
Berlin,  September  20,  1915- 
Following  note  received  from  the  Foreign  Office  to-day: 

FOREIGN  OFFICE, 
Berlin,  September  19,  1915- 

The  undersigned  has  the  honor  to  make  the  following  reply  to  the 
note  of  his  Excellency,  Mr.  James  W.  Gerard,  Ambassador  of  the 
United  States  of  America,  dated  13th  ultimo,  on  the  subject  of  the 
claim  for  reparation  for  the  sinking  of  the  American  merchantman 
William  P.  Frye. 

With  regard  first  to  the  ascertainment  of  the  damages  by  experts 
the  German  Government  believes  that  it  should  dispense  with  the  nom- 
ination of  an  umpire.  In  the  cases  of  the  ascertainment  of  damages 
hitherto  arranged  between  the  German  Government  and  a  neutral  Gov- 
ernment from  similar  causes  the  experts  named  by  the  two  parties 
have  always  reached  an  agreement  as  to  the  amount  of  the  damage 
without  difficulty;  should  it  not  be  possible,  however,  to  reach  an 
agreement  on  some  point,  it  could  probably  be  settled  by  diplomatic 


176  DIPLOMATIC  CORRESPONDENCE 

negotiation.  Assuming  that  the  American  Government  agrees  to  this, 
the  German  Government  names  as  its  expert  Dr.  Kepny,  of  Bremen, 
director  of  the  North  German  Lloyds ;  it  begs  to  await  the  designation 
of  the  American  expert. 

The  German  Govemment  declares  that  it  agrees  to  the  proposal  of 
the  American  Government  to  separate  the  question  of  indemnity  from 
the  question  of  the  interpretation  of  the  Prussian-American  treaties  of 
1785,  1799,  and  1828.  It  therefore  again  expressly  states  that  in  mak- 
ing payment  it  does  not  acknowledge  the  violation  of  the  treaty  as 
contended  by  the  American  side,  but  it  will  admit  that  the  settlement 
of  the  question  of  indemnity  does  not  prejudice  the  arrangement  of 
the  difference  of  opinion  concerning  the  interpretation  of  the  treaty 
rights,  and  that  this  dispute  is  left  to  be  decided  by  The  Hague  tribunal 
of  arbitration. 

The  negotiations  relative  to  the  signing  of  the  compromis  provided 
by  Article  52  of  The  Hague  Arbitration  Convention  would  best  be 
conducted  between  the  Foreign  Office  and  the  American  Embassy  in 
Berlin  in  view  of  the  difficulties  in  the  way  of  instructing  the  Imperial 
Ambassador  at  Washington.  In  case  the  American  Government  agrees, 
the  Foreign  Office  is  prepared  to  submit  to  the  Embassy  a  draft  of 
such  a  compromis. 

The  American  Government's  inquiry  whether  the  German  Govern- 
ment will  govern  its  naval  operations  in  accordance  with  the  German 
or  American  interpretation  of  the  treaty  stipulations  in  question  pend- 
ing the  arbitral  proceedings  has  been  carefully  considered  by  German 
Government.  From  the  standpoint  of  law  and  equity  it  is  not  pre- 
vented in  its  opinion  from  proceeding  against  American  ships  carrying 
contraband  according  to  its  interpretation  until  the  question  is  settled 
by  arbitration.  For  the  German  Government  does  not  need  to  depart 
from  the  application  of  generally  recognized  rules  of  the  law  of 
maritime  war,  as  the  Declaration  of  London,  unless  and  in  so  far  as  an 
exception  based  on  a  treaty,  is  established  beyond  all  doubt ;  in  the  case 
of  the  present  difference  of  opinion  between  the  German  and  the  Amer- 
ican Governments  such  an  exception  could  not  be  taken  to  be  estab- 
lished except  on  the  ground  of  the  arbitral  award.  Moreover,  the 
disadvantages  to  Germany  which  would  ensue  from  the  American  inter- 
pretation of  the  treaty  stipulations  would  be  so  much  greater  as  to  be 
out  of  proportion  to  those  which  the  German  interpretation  would 
entail  for  the  United  States.  For  whereas  the  American  interpretation 
would  materially  impede  Germany  in  her  conduct  of  warfare,  hardly 
any  particular  disadvantage  to  American  citizens  would  result  from 
the  German  interpretation,  since  they  receive  full  reparation  for  any 
property  damage  sustained. 

Nevertheless  the  German  Government,  in  order  to  furnish  to  the 
American  Government  evidence  of  its  conciliatory  attitude,  has  issued 
orders  to  the  German  naval  forces  not  to  destroy  American  merchant- 
men which  have  loaded  conditional  contraband,  even  when  the  condi- 


CASE  OF  THE  WILLIAM  P.  FRYE  177 

tions  of  international  law  are  present,  but  to  permit  them  to  continue 
their  voyage  unhindered  if  it  is  not  possible  to  take  them  into  port. 
On  the  other  hand,  it  must  reserve  to  itself  the  right  to  destroy  vessels 
carrying  absolute  contraband  wherever  such  destruction  is  permissible 
according  to  the  provisions  of  the  Declaration  of  London. 

The  undersigned  begs  to  suggest  that  the  Ambassador  bring  the 
above  to  the  knowledge  of  his  Government,  and  avails  himself  of  the 
opportunity  to  renew,  etc. 

VON  JAGOW. 

GERARD. 


The  Secretary  of  State  to  Ambassador  Gerard 
[Telegram] 

DEPARTMENT  OF  STATE, 
Washington,   October  12,   1915. 

You  are  instructed  to  present  the  following  note  to  the  German 
Minister  of  Foreign  Affairs : 

In  reply  to  your  Excellency's  note  of  September  19,  on  the  subject 
of  the  claim  for  damages  for  the  sinking  of  the  American  merchant1 
man  William  P.  Frye,  I  am  instructed  by  the  Government  of  the  United 
States  to  say  that  it  notes  with  satisfaction  the  willingness  of  the 
Imperial  German  Government  to  settle  the  questions  at  issue  in  this 
case  by  referring  to  a  joint  commission  of  experts  the  amount  of  the 
indemnity  to  be  paid  by  the  Imperial  German  Government  under  its 
admitted  liability  for  the  losses  of  the  owners  and  captain  on  account 
of  the  destruction  of  the  vessel,  and  by  referring  to  arbitration  the 
question  of  the  interpretation  of  treaty  rights.  The  Government  of 
the  United  States  further  notes  that  in  agreeing  to  this  arrangement 
the  Imperial  German  Government  expressly  states  that  in  making  pay- 
ment it  does  not  acknowledge  the  violation  of  the  treaty  as  contended 
by  the  Government  of  the  United  States,  and  that  the  settlement  of 
the  question  of  indemnity  does  not  prejudice  the  arrangement  of  the 
differences  of  opinion  between  the  two  Governments  concerning  the 
interpretation  of  the  treaty  rights.  The  Government  of  the  United 
States  understands  that  this  arrangement  will  also  be  without  prejudice 
to  its  own  contention  in  accordance  with  the  statement  of  its  position 
in  its  note  of  August  10  last  to  your  Excellency  on  this  subject,  and 
the  Government  of  the  United  States  agrees  to  this  arrangement  on 
that  understanding.  Your  Excellency  states  that  the  Imperial  German 
Government  believes  that  the  nomination  of  an  umpire  should  be  dis- 


178  DIPLOMATIC  CORRESPONDENCE 

pensed  with,  because  it  has  been  the  experience  of  the  Imperial  German 
Government  that  the  experts  named  in  such  cases  have  always  reached 
an  agreement  without  difficulty,  and  that  should  they  disagree  on  some 
point,  it  could  probably  be  settled  by  diplomatic  negotiation.  The 
Government  of  the  United  States  entirely  concurs  in  the  view  that  it 
is  not  necessary  to  nominate  an  umpire  in  advance.  It  is  not  to  be 
assumed  that  the  experts  will  be  unable  to  agree,  or  that  if  they  are, 
the  point  in  dispute  can  not  be  settled  by  diplomatic  negotiation,  but 
the  Government  of  the  United  States  believes  that  in  agreeing  to  this 
arrangement  it  should  be  understood  in  advance  that  in  case  the  amount 
of  indemnity  is  not  settled  by  the  joint  commission  of  experts  or  by 
diplomatic  negotiation,  the  question  will  then  be  referred  to  an  umpire 
if  that  is  desired  by  the  Government  of  the  United  States. 

Assuming  that  this  understanding  is  acceptable  to  the  German  Gov- 
ernment, it  will  only  remain  for  the  Government  of  the  United  States 
to  nominate  its  expert  to  act  with  the  expert  already  nominated  by 
the  German  Government  on  the  joint  commission.  It  seems  desirable 
to  the  Government  of  the  United  States  that  this  joint  commission  of 
experts  should  meet  without  delay  as  soon  as  the  American  member  is 
named  and  that  its  meetings  should  be  held  in  the  United  States, 
because,  as  pointed  out  in  my  note  to  you  of  April  30  last,  any  evidence 
which  the  German  Government  may  wish  to  have  produced  is  more 
acceptable  and  can  more  conveniently  be  examined  there  than  else- 
where. 

With  reference  to  the  agreement  to  submit  to  arbitration  the  question 
of  treaty  interpretation,  the  Government  of  the  United  States  notes 
that  in  answer  to  its  inquiry  whether,  pending  the  arbitral  proceedings, 
the  German  Government  will  govern  its  naval  operations  in  accordance 
with  the  German  or  American  interpretation  of  the  treaty  stipulations 
in  question,  the  reply  of  the  German  Government  is  that  it  "has  issued 
orders  to  the  German  naval  forces  not  to  destroy  American  merchant- 
men which  have  loaded  conditional  contraband  even  when  the  condi- 
tions of  international  law  are  present,  but  to  permit  them  to  continue 
their  voyage  unhindered  if  it  is  not  possible  to  take  them  into  port," 
and  that  "on  the  other  hand  it  must  reserve  to  itself  the  right  to  destroy 
vessels  carrying  absolute  contraband  whenever  such  destruction  is  per- 
missible according  to  the  provisions  of  the  Declaration  of  London." 

Without  admitting  that  the  Declaration  of  London  is  in  force,  and 
on  the  understanding  that  the  requirement  in  Article  50  of  the  Declara- 
tion that  "before  the  vessel  is  destroyed  all  persons  on  board  must  be 
placed  in  safety"  is  not  satisfied  by  merely  giving  them  an  opportunity 
to  escape  in  lifeboats,  the  Government  of  the  United  States  is  willing, 
pending  the  arbitral  award  in  this  case,  to  accept  the  Declaration  of 
London  as  the  rule  governing  the  conduct  of  the  German  Government 
in  relation  to  the  treatment  of  American  vessels  carrying  cargoes  of 
absolute  contraband.  On  this  understanding  the  Government  of  the 


CASE  OF  THE  WILLIAM  P.  FRYE  179 

United  States  agrees  to  refer  to  arbitration  this  question  of  treaty 
interpretation. 

The  Government  of  the  United  States  concurs  in  the  desire  of  the 
Imperial  German  Government  that  the  negotiations  relative  to  the 
signing  of  the  compromis  referring  this  question  of  treaty  interpreta- 
tion to  arbitration  under  the  provisions  of  Article  52  of  The  Hague 
Arbitration  Convention,  should  be  conducted  between  the  German 
Foreign  Office  and  the  American  Embassy  in  Berlin,  and  the  Govern- 
ment of  the  United  States  will  be  glad  to  receive  the  draft  compro- 
mise, which  you  inform  me  the  Foreign  Office  is  prepared  to  submit  to 
the  American  Ambassador  in  Berlin.  Anticipating  that  it  may  be  con- 
venient for  the  Imperial  German  Government  to  know  in  advance  of 
these  negotiations  the  preference  of  the  Government  of  the  United 
States  as  to  the  form  of  arbitration  to  be  arranged  for  in  the  com- 
promise, my  Government  desires  me  to  say  that  it  would  prefer,  if 
agreeable  to  the  Imperial  Government,  that  the  arbitration  should  be 
by  summary  procedure,  based  upon  the  provisions  of  Articles  86  to  90, 
inclusive,  of  The  Hague  Arbitration  Convention,  rather  than  the 
longer  form  of  arbitration  before  the  Permanent  Court  at  The  Hague. 

Arrange  for  simultaneous  publication  of  this  note  at  earliest  date 
which  will  give  you  time  to  notify  the  Department. 

LANSING. 


Ambassador  Gerard  to  the  Secretary  of  State 

No.  1964.]  AMERICAN  EMBASSY, 

Berlin,  December  2,  1915. 

SIR:  With  reference  to  my  telegram  of  even  date1  and  to  previous 
correspondence  on  the  subject  of  the  claim  for  damages  for  the  sinking 
of  the  American  merchantman  William  P.  Frye,  I  have  the  honor  to 
transmit  to  you  herewith  a  copy  and  translation  of  a  note  received 
from  the  Imperial  Foreign  Office,  dated  November  29,  1915,  which 
replies  to  a  note  which  I  addressed  to  the  Imperial  Foreign  Office  on 
October  14,  1915,  pursuant  to  the  instructions  contained  in  your  tele- 
gram No.  2291,  of  October  12,  1915. 

A  copy  and  translation  of  the  draft  of  a  compromis  submitted  by  the 
Imperial  German  Government  is  likewise  transmitted  herewith. 

I  have,  etc., 

GERARD. 

1  Not  printed. 


180  DIPLOMATIC  CORRESPONDENCE 

[Inclosure — Translation] 
The  German  Minister  -for  Foreign  Affairs  to  Ambassador  Gerard 

BERLIN,  November  29,  1915. 

The  undersigned  has  the  honor  to  inform  his  Excellency,  Mr.  James 
W.  Gerard,  Ambassador  of  the  United  States  of  America,  in  reply  to 
the  note  of  October  14,  F.  O.  No.  5671,  relative  to  indemnity  for  the 
sinking  of  the  American  merchant  vessel  William  P.  Frye,  as  well  as 
to  the  settlement  by  arbitration  of  the  difference  of  opinion  which  has 
arisen  on  this  occasion,  as  follows : 

With  regard  first  to  the  ascertainment  of  indemnity  for  the  vessel 
sunk,  the  German  Government  is  in  agreement  with  the  American 
Government  in  principle  that  the  amount  of  damages  be  fixed  by  two 
experts,  one  each  to  be  nominated  by  the  German  and  the  American 
Governments.  The  German  Government  regrets  that  it  can  not  comply 
with  the  wish  of  the  American  Government  to  have  the  experts  meet 
in  Washington,  since  the  expert  nominated  by  it,  Dr.  Greve,  of  Bremen, 
director  of  the  North  German  Lloyd,  is  unable  to  get  away  from  here, 
and  furthermore  would  be  exposed  to  the  danger  of  capture  during  a 
voyage  to  America  in  consequence  of  the  conduct  of  maritime  war  by 
England  contrary  to  international  law.  Should  the  American  expert 
likewise  be  unable  to  get  away,  the  two  experts  might  perhaps  get  in 
touch  with  each  other  by  correspondence. 

The  German  Government  likewise  regrets  that  it  can  not  assent  at 
this  time  to  the  nomination  of  an  umpire  as  desired  by  the  American 
Government,  for  apart  from  the  fact  that  in  all  probability  the  experts 
will  reach  an  agreement  in  the  case  of  the  William  P.  Frye  with  the 
same  facility  as  was  the  case  with  similar  negotiations  with  other 
neutral  Governments,  the  assent  of  the  German  Government  to  the 
consultation  of  an  umpire  would  depend  materially  upon  whether  the 
difference's  of  opinion  between  the  two  experts  pertained  to  questions 
of  principle  or  merely  to  the  appraisement  of  certain  articles.  The 
consultation  of  an  umpire  could  only  be  considered  at  all  in  the  case  of 
appraisements  of  this  nature. 

Should  the  American  Government  insist  on  its  demands  for  the  meet- 
ing of  the  experts  at  Washington  or  the  early  choice  of  an  umpire,  the 
only  alternative  would  be  to  arrange  the  fixing  of  damages  by  diplo- 
matic negotiation.  In  such  an  event  the  German  Government  begs  to 
await  the  transmission  of  a  statement  of  particulars  of  the  various 
claims  for  damages  accompanied  by  the  necessary  proofs. 

With  regard  to  the  arbitral  treatment  of  the  difference  of  opinion 
relative  to  the  interpretation  of  certain  stipulations  of  the  Prussian- 
American  commercial  treaties,  the  German  Government  has  drawn  up 
the  inclosed  draft  of  a  compromis,  which  would  have  to  be  worded  in 
the  German  and  English  languages  and  drawn  up  with  due  considera- 
tion of  the  two  alternating  texts.  It  is  true  that  the  draft  does  not 
accommodate  the  suggestions  of  the  American  Government  so  far  as 


CASE  OF  THE  WILLIAM  P.  FRYE  181 

it  is  not  in  accordance  with  the  rules  of  summary  procedure  pro- 
vided by  chapter  4  of  The  Hague  Arbitration  Convention,  but  with 
the  rules  of  regular  procedure.  The  summary  procedure  is  naturally 
intended  only  for  differences  of  opinion  of  inferior  importance,  whereas 
the  German  Government  attaches  very  particular  importance  to  the 
interpretation  of  the  Prussian-American  treaties  which  have  existed 
for  over  100  years.  Pursuant  to  the  agreement  made,  any  proposed 
amendments  would  have  to  be  discussed  between  the  Foreign  Office 
and  the  American  Embassy,  and  oral  discussions  would  appear  to  be 
advisable. 

Until  the  decision  of  the  permanent  court  of  arbitration,  the  German 
naval  forces  will  sink  only  such  American  vessels  as  are  loaded  with 
absolute  contraband,  when  the  preconditions  provided  by  the  Declara- 
tion of  London  are  present.  In  this  the  German  Government  quite 
shares  the  view  of  the  American  Government  that  all  possible  care 
must  be  taken  for  the  security  of  the  crew  and  passengers  of  a  vessel 
to  be  sunk.  Consequently,  the  persons  found  on  board  of  a  vessel  may 
not  be  ordered  into  her  lifeboats  except  when  the  general  conditions, 
that  is  to  say,  the  weather,  the  condition  of  the  sea,  and  the  neighbor- 
hood of  the  coasts  afford  absolute  certainty  that  the  boats  will  reach 
the  nearest  port.  For  the  rest  the  German  Government  begs  to  point 
out  that  in  cases  where  German  naval  forces  have  sunk  neutral  vessels 
for  carrying  contraband,  no  loss  of  life  has  yet  occurred. 

The  undersigned  begs  to  give  expression  to  the  hope  that  it  will  be 
possible  for  the  two  Governments  to  reach  a  complete  understanding 
regarding  the  case  of  the  William  P.  Frye  on  the  above  basis,  and 
avails  himself  of  this  opportunity  to  renew  to  his  Excellency,  the 
Ambassador,  the  assurance  of  his  highest  consideration. 

VON  JAGOW. 

[Translation] 
ARBITRATION    COMPROMIS 

The  Imperial  German  Government  and  the  Government  of  the  United 
States  of  America  having  reached  an  agreement  to  submit  to  a  court 
of  arbitration  the  difference  of  opinion  which  has  arisen,  occasioned 
by  the  sinking  of  the  American  merchant  vessel  William  P.  Frye  by  a 
German  war-ship,  in  respect  of  the  interpretation  of  certain  stipulations 
of  the  Prussian-American  treaties  of  amity  and  commerce,  the  under- 
signed, duly  authorized  for  this  purpose,  have  agreed  to  the  following 
compromis: 

ARTICLE  1 

A  court  of  arbitration  composed  in  accordance  with  the  following 
stipulations  is  charged  with  the  decision  of  the  legal  question: 

Whether  according  to  the  treaties  existing  between  the  parties,  in 


182  DIPLOMATIC  CORRESPONDENCE 

particular  Article  13  of  the  Prussian- American  treaty  of  amity  and 
commerce  of  July  11,  1799,  the  belligerent  contracting  party  is  pre- 
vented from  sinking  merchant  vessels  of  the  neutral  contracting  party 
for  carrying  contraband  when  such  sinking  is  permissible  according 
to  general  principles  of  international  law. 

ARTICLE  2 

The  court  of  arbitration  shall  be  composed  of  five  arbitrators  to  be 
chosen  among  the  members  of  the  permanent  tribunal  of  arbitration  at 
The  Hague. 

Each  Government  will  choose  two  arbitrators,  of  whom  only  one  may 
be  a  national  of  such  country,  as  soon  as  possible,  at  the  latest  within 
two  weeks  from  the  day  this  compromis  is  signed.  The  four  arbi- 
trators thus  nominated  shall  choose  an  umpire  within  four  weeks  after 
they  have  been  notified  of  their  nomination;  in  case  of  an  equal  vote 
the  president  of  the  Swiss  Federal  Council  shall  be  requested  to  select 
the  umpire. 

ARTICLE  3 

On  March  1,  1916,  each  party  shall  transmit  to  the  bureau  of  the 
permanent  tribunal  of  arbitration  18  copies  of  its  argument  with 
authenticated  copies  of  all  documents  and  correspondence  on  which  it 
intends  to  rely  in  the  case.  The  bureau  will  arrange  without  delay  for 
the  transmission  to  the  arbitrators  and  to  the  parties,  each  arbitrator  to 
receive  two  copies,  each  party  three  copies.  Two  copies  shall  remain 
in  the  archives  of  the  bureau. 

On  May  1,  1916,  the  parties  shall  deposit  their  countercases  with 
the  supporting  evidence  and  their  statements  in  conclusion. 

ARTICLE  4 

Each  party  shall  deposit  with  the  international  bureau  at  the  latest 
on  March  1,  1916,  the  sum  of  3,000  gulden  of  The  Netherlands  toward 
the  costs  of  the  arbitral  procedure. 

ARTICLE  5 

The  court  of  arbitration  shall  meet  at  The  Hague  on  June  15,  1916, 
and  proceed  immediately  to  examine  the  dispute. 

ARTICLE  6 

The  parties  may  make  use  of  the  German  or  the  English  language. 

The  members  of  the  court  may  use  the  German  or  the  English 
language  as  they  may  choose.  The  decisions  of  the  court  shall  be 
written  in  both  languages. 


CASE  OF  THE  APPAM  183 

ARTICLE  7 

Each  party  shall  be  represented  by  a  special  agent  whose  duty  shall 
be  to  act  as  an  intermediary  between  the  party  and  the  court.  These 
agents  shall  furnish  the  court  any  explanations  which  the  court  may 
demand  of  them;  they  may  submit  any  legal  arguments  which  they 
may  consider  advisable  for  the  defense  of  their  case. 

ARTICLE  8 

The  stipulations  of  the  convention  of  October  18,  1907,  for  the 
pacific  settlement  of  international  disputes,  shall  be  applied  to  this 
arbitral  procedure,  in  so  far  as  nothing  to  the  contrary  is  provided  by 
the  above  compromis. 

Done  in  duplicate  at  Berlin  on  the  day  of  


Case  of  the  British  Steamship  Appam,  captured  by  German  Naval 
Forces  and  brought  by  a  Prize  Crew  into  an  American  Port 

The  German  Ambassador  to  the  Secretary  of  State 

[Translation] 
J.  Nr.  A  785.] 

GERMAN  EMBASSY, 
Washington,  February  2,  1916. 

MR.  SECRETARY  OF  STATE  :  I  have  the  honor  to  inform  Your  Excel- 
lency that  the  British  steamer  Appam,  captured  by  the  German  naval 
forces,  arrived  at  Newport  News,  Va.,  on  the  1st  of  this  month  under 
the  command  of  Lieut.  Berg  of  the  navy.  The  commanding  officer 
intends,  in  accordance  with  Article  XIX  of  the  Prusso-American  treaty 
of  September  10,  1785,  to  stay  in  an  American  port  until  further  notice 

The  Appam  has  not  been  converted  into  an  auxiliary  Bruiser,  is  not 
armed,  and  has  made  no  prize  under  Mr.  Berg's  command  She  carries 
on  board  the  crews  of  seven  enemy  vessels  taken  by  H.  M.  S.  Moewe 
who  have  been  transferred  to  her  by  that  ship. 

There  is  on  board  a  locked-up  military  party  of  the  enemy,  whose 
internment  in  the  United  States  I  request. 

The  crew  of  the  Appam  tried  to  offer  resistance  when  the  ship  was 


184  DIPLOMATIC  CORRESPONDENCE 

captured,  as  the  guns  at  hand  were  already  in  place  and  trained  on 
the  German  warship.  The  members  of  the  crew  are  therefore  to  be 
looked  upon  likewise  as  combatants,  and  I  have  the  honor  to  ask  of 
Your  Excellency  that  they  too  be  detained  in  the  United  States  until 
the  end  of  the  war. 
Accept,  etc., 

J.  BERNSTORFF. 


The  Secretary  of  State  to  tlie  British  Ambassador 

DEPARTMENT  OF  STATE, 
Washington,  February  3,  1916. 

MY  DEAR  MR.  AMBASSADOR:  Referring  to  our  conversation  of  to-day 
in  regard  to  the  steamer  Appam  now  at  Norfolk  in  charge  of  a  German 
prize  crew,  I  have  received  from  the  collector  of  customs  in  Norfolk 
a  list  (copy  of  which  is  inclosed)1  of  persons  on  board  the  Appam 
which  the  prize  master  asserts  are  in  the  military  or  naval  service  of 
His  Britannic  Majesty  and  whom  he  believes,  therefore,  should  not  be 
released  from  his  vessel.  I  desire,  therefore,  to  ask  if  you  will  be  good 
enough  to  inform  me  as  to  whether  any  of  the  gentelrnen  named  on 
the  list  are  members  of  His  Majesty's  armed  forces. 
I  am,  etc., 

ROBERT  LANSING. 


Memorandum  from  the  British  Embassy 

BRITISH  EMBASSY, 
Washington,  February  4,  1916. 

The  British  Embassy  has  the  honour  to  refer  to  the  rule  of  inter- 
national law  now  generally  recognised  and  embodied  in  Articles  21  and 
23  of  The  Hague  Convention  XIII  of  1907  and  to  request  that  the 
principles  in  question  should  be  applied  to  the  Appam,. 

These  principles  have  been  accepted  by  both  the  British  and  the 
United  States  Governments.  The  Queen's  Proclamation  of  1861  inter- 
dicted the  armed  ships  of  belligerents  from  carrying  prizes  made  by 

1  Not  printed. 


CASE  OF  THE  APPAM  185 

them  into  British  ports,  harbours,  roadsteads,  or  waters,  a  measure  of 
which  the  Secretary  of  State  of  the  United  States  expressed  his  ap- 
proval. 

In  the  report  of  the  American  delegates  to  the  Hague  Conference 
it  is  stated  that  while  Articles  21  and  22  seemed  unobjectionable,  Article 
23  (allowing  the  sequestration  of  prizes)  "was  objectionable  for  the 
reason  that  it  involves  a  neutral  in  participation  in  the  war  to  the  extent 
of  giving  asylum  to  a  prize  which  the  belligerent  may  not  be  able  to 
conduct  to  a  home  port.  This  article  represents  the  revival  of  an 
ancient  abuse  and  should  not  be  approved.  In  this  connection  it  is 
proper  to  note  that  a  proposition  absolutely  forbidding  the  destruction 
of  a  neutral  prize,  which  was  vigorously  supported  by  England  and  the 
United  States,  failed  of  adoption.  Had  the  proposition  been  adopted 
there  would  have  been  some  reason  for  authorizing  such  an  asylum  to 
be  afforded  in  the  case  of  neutral  prizes." 

This  declaration  shows  that  the  Prussian  treaty  of  1799  (by  which 
in  any  case  Great  Britain,  not  being  a  party,  can  not  be  affected)  was 
regarded  as  obsolete  and  inconsistent  with  modern  doctrines,  and  the 
fact  that  the  United  States  Government  adhered  to  the  convention  while 
reserving  Article  23  shows  that  in  so  far  as  the  provisions  of  the  treaty 
of  1799  conflict  with  the  convention  they  are  regarded  as  overridden 
by  the  later  instrument. 

The  rule  embodied  in  Article  21  of  the  1907  Convention  is  of  general 
application,  and  the  fact  that  Great  Britain  has  not  ratified  the  conven- 
tion does  not  affect  the  obligation  of  the  United  States  to  treat  ships 
and  property  of  all  nations  in  accordance  with  what  the  attitude  of  the 
United  States  towards  the  convention  shows  that  they  themselves 
regarded  as  the  general  rule. 

Relying  on  the  above  considerations  this  Embassy  is  instructed  to 
request  that  if  the  Appam  is  regarded  by  the  United  States  Government 
as  a  prize  she  should  be  restored  to  her  owners  and  the  prize  crew 
interned. 

The  British  Embassy  begs  to  add  that  according  to  information  re- 
ceived the  captain  of  the  German  prize  crew  signalled  on  arrival  that 
the  ship  was  a  part  of  the  armed  naval  force  of  the  German  Empire. 
If  this  claim  is  advanced  the  United  States  Government  will  doubtless 
deal  with  the  ship  according  to  their  recognised  practice.  If,  however, 
she  is  regarded  as  a  prize,  this  Embassy  expresses  its  entire  confidence 


186  DIPLOMATIC  CORRESPONDENCE 

that  she  will  not  be  allowed  to  leave  United  States  jurisdiction  under 
German  control  in  a  condition  which  would  enable  her  to  undertake 
offensive  action;  and  that  she  will  not  be  allowed  to  increase  or  aug- 
ment her  force  by  adding  to  her  armament  or  her  crew  or  by  transfer 
of  trained  men  to  the  ship  or  by  a  change  of  personnel  or  in  any  other 
manner.  The  British  Embassy  begs  to  add  that  the  claim  that  the  ship 
was  a  war  vessel  shows  that  if  allowed  by  the  United  States  to  leave 
as  a  prize  under  German  control  she  would  be  used  by  the  Germans 
as  a  man-of-war ;  and  it  is  needless  to  remind  the  State  Department 
of  the  doctrine  accepted  by  both  our  Governments,  under  which  the 
British  Government  would  be  compelled  to  hold  the  United  States 
Government  responsible  for  any  injury  which  she  may  inflict. 

CECIL  SPRING  RICE. 


Telegram  from  the  German  Government  concerning  its  opinion  on 
Appam  case: 

"Appam  is  not  an  auxiliary  cruiser  but  a  prize.  Therefore  she 
must  be  dealt  with  according  to  Article  19  of  Prusso-American 
treaty  of  1799.  Article  21  of  Hague  Convention  concerning  neu- 
trality at  sea  is  not  applicable,  as  this  convention  was  not  ratified 
by  England  and  is  therefore  not  binding  in  present  war  according 
to  Article  28.  The  above-mentioned  Article  19  authorizes  a  prize 
ship  to  remain  in  American  ports  as  long  as  she  pleases.  Neither 
the  ship  nor  the  prize  crew  can  therefore  be  interned  nor  can  there 
be  question  of  turning  the  prize  over  to  English." 


Memorandum  from  the  British  Embassy 

BRITISH  EMBASSY, 
Washington,  February  12,  1916. 

It  has  been  ascertained  from  Norfolk  that  no  restrictions  are  placed 
upon  persons  going  on  board  the  Appam  at  the  invitation  of  her  com- 


1  Received  at  the  Department  of  State  February  8,  1916. 


CASE  OF  THE  APPAM  187 

mander,  though  the  latter  reports  daily  to  the  collector  of  customs  that 
all  visitors  have  returned  to  the  shore. 

The  British  Embassy  cannot  but  view  this  arrangement  with  some 
anxiety  and,  referring  to  their  memorandum  of  February  3rd,  beg  to 
reiterate  the  expression  of  their  confidence  that  adequate  precautions 
are  being  taken  with  a  view  to  preventing  any  increase  in  the  armament 
or  crew  of  the  ship  or  any  change  in  her  personnel  which  would  aug- 
ment her  force. 

The  present  notification  is  not  of  course  to  be  considered  as  a  request 
for  action  or  as  a  complaint,  but  is  made  in  fulfilment  of  the  duty  in- 
cumbent on  this  Embassy  to  inform  the  State  Department  at  once  of 
any  information  which  may  reach  them  relative  to  matters  appertaining 
to  pending  questions  between  the  two  Governments. 


Memorandum  from  the  British  Embassy 

BRITISH  EMBASSY, 
Washington,  February  15,  1916. 

The  British  Embassy  has  the  honour  to  inform  the  State  Depart- 
ment that  the  British  Government  reserves  all  rights  under  accepted 
principles  and  practice  of  international  law  with  regard  to  the  Appam, 
and  that  any  action  taken  in  the  matter  by  the  owners  in  maintenance 
of  their  interests  is  not  in  any  way  to  be  considered  as  prejudicing  any 
claim  advanced  or  to  be  advanced  by  the  British  Government. 


J.  Nr.  A.  1293.]  GERMAN  EMBASSY, 

Washington,  February  22,  1916. 

MY  DEAR  MR.  SECRETARY:  Lieut.  Hans  Berg,  of  the  German  Im- 
perial Navy  and  commander  of  H.  M.  S.  Appam,  now  lying  at  anchor 
near  Newport  News,  Va.,  has  infromed  me  that  a  libel  was  filed 
against  said  vessel  in  the  United  States  District  Court  for  the  Eastern 
District  of  Virginia,  at  Norfolk,  on  the  16th  day  of  February,  1916, 
by  the  British  and  African  Steam  Navigation  Co.,  Limited,  and  that, 


188  DIPLOMATIC  CORRESPONDENCE 

under  the  authority  of  said  court,  he  has  been  cited  by  the  marshal  of 
the  eastern  district  of  Virginia  to  appear  before  said  court  on  Friday, 
the  3d  day  of  March,  1916,  to  answer  the  said  libel. 

As  the  Appam  was  captured  at  sea  by  a  German  man-of-war  and 
brought  to  the  Virginian  port  as  a  prize  ship  according  to  the  treaty 
existing  between  our  countries,  you  may  well  appreciate  my  surprise 
at  the  action  which  has  been  taken. 

Article  XIX  of  the  treaty  of  1799  between  Prussia  and  the  United 
States,  renewed  in  part  by  Article  XII  of  the  treaty  of  1828,  provides 
that  "the  vessels  and  effects  taken  from"  the  enemies  of  the  contracting 
parties  may  be  carried  freely  wheresoever  they  please,  and  that  such 
prizes  shall  not  be  "put  under  legal  process  when  they  come  to  and 
enter  the  ports  of  the  other  party  .  .  ." 

In  view  of  the  terms  of  the  treaty,  I  am  at  a  loss  to  understand  why 
such  action  has  been  taken  by  a  court  of  your  country.  It  may  be 
argued  that  it  has  been  because  Article  21  of  the  Hague  "Convention 
concerning  the  rights  and  duties  of  neutral  powers  in  naval  war"  is 
applicable.  This  article  provides :  "A  prize  may  only  be  brought  into 
a  neutral  port  on  account  of  unseaworthiness,  stress  of  weather,  or 
want  of  fuel  or  provisions." 

It  must  leave  as  soon  as  the  circumstances  which  justified  its 
entry  are  at  an  end.  If  it  does  not  the  neutral  power  must  order 
it  to  leave  at  once ;  should  it  fail  to  obey  the  neutral  power  must 
employ  the  means  at  its  disposal  to  release  it  with  its  officers  and 
crew  and  to  intern  the  crew. 

But  as  Great  Britain  has  not  ratified  the  convention  the  article  is  not 
binding,  for  the  reason  that  Article  28  provides:  "The  provisions  of 
the  present  convention  do  not  apply  except  to  the  contracting  powers, 
and  then  only  if  all  the  belligerents  are  parties  to  the  convention." 

Besides,  the  Appam  flies  the  naval  flag  of  and  belongs  to  the  German 
Government,  and  therefore  the  possession  of  the  captors  in  a  neutral 
port  is  the  possession  of  their  sovereign.  The  sovereign  whose  officers 
have  captured  the  vessel  as  a  prize  of  war  remains  in  possession  of 
that  vessel  and  has  full  power  over  her.  The  neutral  sovereign  or  its 
court  can  take  no  cognizance  of  the  question  of  prize  or  no  prize  and 
can  not  wrest  from  the  possession  of  the  captor  a  prize  of  war  brought 
into  its  ports. 


CASE  OF  THE  APPAM  189 

The  position  which  I  take  is  fully  supported  by  an  opinion  of  the 
Attorney  General  of  the  United  States  (7  Op.,  122),  the  syllabus  of 
which  recites  that  a  "foreign  ship  of  war  or  any  prize  of  hers  in  com- 
mand of  a  public  officer  possesses  in  the  ports  of  the  United  States  the 
right  of  exterritoriality  and  is  not  subject  to  the  local  jurisdiction." 

I  would  therefore  most  respectfully  protest  against  the  action  of  the 
United  States  District  Court,  and  request  that  you  may  ask  the  At- 
torney General  to  instruct  the  United  States  District  Attorney  for  the 
Eastern  District  of  Virginia  to  appear  before  the  United  States  Dis- 
trict Court  and  take  such  steps  as  may  be  necessary  and  proper  to 
secure  the  prompt  dismissal  of  the  libel. 
I  am,  etc., 

J.  BERNSTORFF. 


The  Secretary  of  State  to  the  German  Ambassador 

DEPARTMENT  OF  STATE, 
Washington,  March  2, 

EXCELLENCY  :  I  have  the  honor  to  acknowledge  the  receipt  of  Your 
Excellency's  note  of  the  2d  of  February,  informing  me  that  the  British 
steamer  Appam,  captured  by  the  German  naval  forces,  had  arrived  at 
Norfolk  under  the  command  of  Lieut.  Berg,  of  the  Imperial  German 
Navy,  who  intends,  in  accordance,  as  he  believes,  with  Article  XIX  of 
the  Prussian-American  treaty  of  1799,  to  remain  in  American  waters 
until  further  notice,  and  that  the  Appam  has  not  been  converted  into 
an  auxiliary  cruiser,  is  not  armed,  and  has  taken  no  prizes  under  Lieut. 
Berg's  command.  In  conclusion  Your  Excellency  requests  internment 
in  the  United  States  during  the  remainder  of  the  war  of  a  military 
party  belonging,  Your  Excellency  states,  to  the  enemy  of  Germany  and 
also  the  internment  of  the  crew  of  the  Appam,  inasmuch  as  they  offered 
resistance  to  capture  by  His  Majesty's  forces. 

I  have  the  honor  also  to  acknowledge  the  receipt  of  Your  Excel- 
lency's note  of  February  22,  calling  my  attention  to  a  libel  which  has 
been  filed  against  the  Appam  by  the  United  States  District  Court  on 
February  16  by  the  British  and  African  Steam  Navigation  Co.,  Limited, 
and  to  the  fact  that  Lieut.  Berg  has  been  cited  to  appear  before  the 
court  on  March  3  next  to  answer  this  libel.  Your  Excellency  points 


190  DIPLOMATIC  CORRESPONDENCE 

out  that  in  view  of  the  terms  of  Article  XIX  of  the  treaty  of  1799  and 
of  the  inoperation  of  The  Hague  Convention  relating  to  neutral  rights 
and  duties  in  naval  warfare,  you  are  at  a  loss  to  understand  why  such 
action  has  been  taken  in  this  country.  Your  Excellency,  moreover, 
asserts  in  effect  that  as  the  Appam  flies  the  naval  flag  of  and  belongs 
to  the  German  Government,  and  as  the  possession  of  the  captors  is 
the  possession  of  their  sovereign,  "the  neutral  sovereign  or  its  court 
can  take  no  cognizance  of  the  question  of  prize  or  no  prize  and  can 
not  wrest  from  the  possession  of  the  captor  a  prize  of  war  brought  into 
its  ports."  Your  Excellency,  in  conclusion,  protests  against  the  action 
of  the  court  and  requests  that  the  Attorney  General  instruct  the  proper 
United  States  District  Attorney  to  take  such  steps  as  may  be  necessary 
and  proper  to  secure  the  prompt  dismissal  of  the  libel. 

Article  XIX  of  the  treaty  of  1799,  to  which  Your  Excellency  refers, 
reads  as  follows : 

The  vessels  of  war,  public  and  private,  of  both  parties,  shall 
carry  (conduire)  freely,  wheresoever  they  please,  the  vessels  and 
effects  taken  (pris}  from  their  enemies,  without  being  obliged  to 
pay  any  duties,  charges,  or  fees  to  officers  of  admiralty,  of  the 
customs,  or  any  others;  nor  shall  such  prizes  (prises}  be  arrested,' 
searched,  or  put  under  legal  process,  when  they  come  to  and  enter 
the  ports  of  the  other  party,  but  may  freely  be  carried  (conduites} 
out  again  at  any  time  by  their  captors  (le  vaisseau  preneur}  to  the 
places  expressed  in  their  commissions,  which  the  commanding 
officer  of  such  vessel  (le  dit  vaisseau)  shall  be  obliged  to  show. 
But  conformably  to  the  treaties  existing  between  the  United  States 
and  Great  Britain,  no  vessel  (vaisseau}  that  shall  have  made  a 
prize  (prise}  upon  British  subjects  shall  have  a  right  to  shelter 
in  the  ports  of  the  United  States,  but  if  (il  est)  forced  therein  by 
tempests,  or  any  other  danger  or  accident  of  the  sea,  they  (il  sera} 
shall  be  obliged  to  depart  as  soon  as  possible. 

This  translation  is  taken  from  the  published  treaties  of  the  United 
States,  and  while  not  conforming  strictly  to  the  original  French  text 
(copy  of  which  is  inclosed),  is  sufficiently  accurate  for  the  purposes 
of  this  note.  At  the  outset  it  may  be  pointed  out  that  as  the  object 
of  this  provision  was  to  mollify  the  existing  practice  of  nations  as  to 
asylum  for  prizes  brought  into  neutral  ports  by  men-of-war,  it  is  sub- 
ject to  a  strict  interpretation  when  its  privileges  are  invoked  in  a  given 
case  in  modification  of  the  established  rule.  By  a  reasonable  interpre- 
tation of  Article  XIX,  however,  it  seems  clear  that  it  is  applicable  only 


CASE  OF  THE  APPAM  191 

to  prizes  which  are  brought  into  American  ports  by  vessels  of  war. 
The  Appam,  however,  as  Your  Excellency  is  aware,  was  not  accom- 
panied by  a  ship  of  war,  but  came  into  the  port  of  Norfolk  alone  in 
charge  of  a  prize  master  and  crew.  Moreover,  the  treaty  article  allows 
to  capturing  vessels  the  privileges  of  carrying  out  their  prizes  again 
"to  the  places  expressed  in  their  commissions."  The  commissions  re- 
ferred to  are  manifestly  those  of  the  captor  vessels  which  accompany 
prizes  into  port  and  not  those  of  the  officers  of  the  prizes  arriving  in 
port  without  convoy,  and  it  is  clear  that  the  port  of  refuge  was  not  to 
be  made  a  port  of  ultimate  destination  or  indefinite  asylum.  In  the 
case  of  the  Appam  the  commission  of  Lieut.  Berg,  a  copy  of  which  was 
given  to  the  collector  of  customs  at  Norfolk,  not  only  is  a  commission 
of  a  prize  master,  but  directs  him  to  bring  the  Appam  to  the  nearest 
American  port  and  "there  to  lay  her  up."  In  the  opinion  of  the  Govern- 
ment of  the  United  States,  therefore,  the  case  of  the  Appam  does  not 
fall  within  the  evident  meaning  of  the  treaty  provision  which  contem- 
plates temporary  asylum  for  vessels  of  war  accompanying  prizes  while 
en  route  to  the  places  named  in  the  commander's  commission,  but  not 
the  deposit  of  the  spoils  of  war  in  an  American  port.  In  this  interpreta- 
tion of  the  treaty,  which  I  believe  is  the  only  one  warranted  by  the 
terms  of  the  provision  and  by  the  British  treaties  referred  to  in  Article 
XIX,  and  by  other  contemporaneous  treaties,  the  Government  of  the 
United  States  considers  itself  free  from  any  obligation  to  accord  the 
Appam  the  privileges  stipulated  in  Article  XIX  of  the  treaty  of  1799. 

Under  this  construction  of  the  treaty  the  Appam  can  enjoy  only  those 
privileges  usually  granted  by  maritime  nations,  including  Germany,  to 
prizes  of  war,  namely,  to  enter  neutral  ports  only  in  case  of  stress  of 
weather,  want  of  fuel  and  provisions,  or  necessity  of  repairs,  but  to 
leave  as  soon  as  the  cause  of  their  entry  has  been  removed. 

As  to  the  grounds  upon  which  the  application  for  the  libel  of  the 
Appam  by  the  United  States  court  was  made,  this  Department  has  no 
direct  information ;  but  it  is  understood  that  the  libelant  contends  that 
the  Appam  is  not,  assuming  that  it  is  a  prize  of  the  German  Govern- 
ment, the  property  of  that  Government,  but  that,  on  the  contrary,  the 
title  to  the  vessel  is  now  properly  in  the  British  owners.  Whether  in 
these  circumstances  the  United  States  court  has  properly  or  improperly 
assumed  jurisdiction  of  the  case  and  taken  custody  of  the  ship  is  a 
legal  question  which,  according  to  American  practice,  must  now  be  de- 
cided by  the  municipal  courts  of  this  country.  With  the  purpose, 


192  DIPLOMATIC  CORRESPONDENCE 

however,  of  having  Your  Excellency's  views  as  to  this  matter  brought 
to  the  attention  of  the  court,  I  have  transmitted  your  note  of  February 
22  to  the  Attorney  General,  with  a  request  that  he  instruct  the  United 
States  District  Attorney  to  appear  in  the  case  as  amicus  curies  and 
present  to  the  court  a  copy  of  Your  Excellency's  note. 

As  to  the  internment  of  the  military  party  which  Your  Excellency- 
states  was  on  board  the  Appam,  as  well  as  the  officers  and  crew  who 
offered  resistance  to  capture  by  His  Majesty's  ships,  I  have  the  honor 
to  inform  you  that  the  Government  has,  after  due  consideration,  con- 
cluded that  they  should  be  released  from  detention  on  board  the  Appam, 
together  with  their  personal  effects. 
Accept,  etc., 

ROBERT  LANSING. 


The  German  Ambassador  to  the  Secretary  of  State 

J.  Nr.  A.  1829.]  GERMAN  EMBASSY, 

Washington,  March  14,  1916. 

MY  DEAR  MR.  SECRETARY  :  Referring  to  previous  correspondence  in 
regard  to  H.  M.  S.  Appam,  I  am  informed  by  our  counsel  that  the 
State  and  Treasury  Departments,  mainly  through  the  collector  of  cus- 
toms, have  been  requesting  the  District  Court  of  the  United  States 
for  the  Eastern  District  of  Virginia  to  guard  against  two  things:  (1) 
An  augmentation  of  the  crew  of  the  Appam;  and  (2)  an  attempt  on 
her  part  to  escape;  and  that  such  action  would  tend  to  disturb  the 
peace  of  mind  of  the  court. 

While  I  can  not  understand  on  what  theory  the  court  can  be  asked 
to  have  anything  to  do  with  questions  of  augmentation,  I  can  readily 
appreciate  its  desire  to  prevent  any  possible  escape  so  long  as  court  pro- 
ceedings are  pending. 

In  view  of  the  action  of  the  Departments,  the  court  appears  un- 
willing to  permit  the  ship  to  continue  in  the  stream  with  only  two 
keepers,  and  has  requested  counsel  to  consent  to  her  removal  to  a  wharf 
or  some  safer  anchorage. 

Lieut.  Berg  objects  to  her  being  taken  to  a  wharf  on  account  of 
increased  difficulty  of  controlling  his  crew,  the  danger  of  annoyance 
from  curiosity  seekers,  and  the  possibility  of  injury  from  hostile  sources- 

Because  of  the  divergent  wishes  in  this  respect,  I  believe  that  the 


CASE  OF  THE  APPAM  193 

court  will  be  fully  satisfied,  and  at  the  same  time  Lieut.  Berg  can  carry 
out  his  wishes,  if  I  now  assure  you,  as  I  do,  that,  while  reserving  all 
the  rights  of  the  German  Government  in  this  case,  both  before  the 
court  and  in  our  diplomatic  negotiations,  and  with  a  further  reserva- 
tion that  such  assurance  and  agreement  shall  be  without  prejudice  to 
the  defense,  no  change  shall  be  made  in  the  status  quo  with  respect  to 
augmentation  of  the  crew  or  equipment  that  might  be  considered  a 
breach  of  neutrality,  and  that  no  attempt  to  run  the  vessel  away  will 
be  made  so  long  as  said  ship  remains  under  the  custody  of  said  court. 

I  would  therefore  most  respectfully  request  that  you  may  communi- 
cate my  assurance  to  the  Treasury  Department,  and  that  both  Depart- 
ments may  communicate,  through  the  proper  officers,  with  the  court 
and  inform  it  that,  in  view  of  my  assurance,  they  have  no  further  re- 
quests to  make  along  this  line  at  the  present  time,  and  that  for  the 
present  it  would  not  appear  to  be  necessary  that  the  ship  be  removed 
to  a  wharf. 

In  my  note  of  February  22  I  requested  you  to  ask  the  Attorney 
General  to  instruct  the  United  States  District  Attorney  for  the  Eastern 
District  of  Virginia  to  appear  before  the  United  States  District  Court 
and  take  such  steps  as  may  be  necessary  and  proper  to  secure  the 
dismissal  of  the  libel.  At  a  hearing  held  before  said  court  at  Richmond, 
Va.,  on  March  7,  said  attorney  appeared  and  presented  a  copy  of  my 
said  note  of  February  22  to  you,  but  did  not  ask  for  the  dismissal  of 
the  libel.  In  view  of  this  fact,  and  believing  at  this  time  that  his  pres- 
ence in  said  court  will  not  be  further  necessary  for  assisting  in  arriving 
at  a  solution  of  the  case,  I  would  most  respectfully  request  that  you 
may  ask  the  Attorney  General  to  instruct  him  not  to  appear  further 
without  securing  express  instructions  so  to  do  for  such  special  reasons 
as  your  Government  may  have  for  so  authorizing  him. 
I  am,  etc. 

J.  BERNSTORFF. 


The  German  Ambassador  to  the  Secretary  of  State 

[Translation] 
J.  Nr.  A.  1727.]  GERMAN  EMBASSY, 

Washington,  March  16,  1916. 

In  reply  to  your  kind  note  of  the  2d  instant,  I  have  the  honor,  in 
compliance  with  instructions,  to  submit  to  you  the  inclosed  memoran- 


194  DIPLOMATIC  CORRESPONDENCE 

dum  of  the  Imperial  Government  on  the  subject  that  has  been  received 
by  me. 

Should  the  Government  of  the  United  States  fail  to  concur  in  the 
Imperial  Government's  interpretation,  the  Imperial  Government  would 
propose  that  the  construction  of  the  treaty  in  question  be  referred  to 
the  Hague  Court  of  Arbitration  in  the  same  way  as  the  Imperial 
Government  proposed  in  the  William  P.  Frye  case  in  Secretary  of  State 
von  Jagow's  note  of  November  29  last,  to  Mr.  Gerard,  ambassador  of 
the  United  States  at  Berlin,  provided  that  the  status  quo  of  the  steam- 
ship Appam  will  remain  unchanged  throughout  the  arbitration  proceed- 
ings and  that  the  steamer  will  be  allowed  to  remain  with  her  prize 
crew  in  an  American  port  during  that  time. 
Accept,  etc., 

J.  BERNSTORFF. 


[Inclosure] 

MEMORANDUM 

J.  Nr.  A  1727/16.]  GERMAN  EMBASSY. 

The  Imperial  Government  does  not  consider  correct  the  interpreta- 
tion of  the  Department  of  State  of  Article  19  of  the  treaty  of  1799  as 
given  in  the  note. 

The  Department  of  State  criticized  that  the  Appam  was  not  brought 
into  port  by  a  warship,  but  arrived  only  with  a  prize  crew  on  board. 
The  treaty  of  1799,  referring  to  prizes  accompanied  by  a  warship, 
speaks,  of  course,  of  commercial  warfare  as  it  was  usual  in  those  times 
and  which  could  be  carried  on  by  both  parties  only  by  privateers.  This 
made  it  necessary  that  the  prize  was  brought  into  port  by  the  capturing 
vessel.  The  development  of  modern  cruiser  warfare,  where,  as  a  rule, 
the  warship  sends  her  prize  into  port  by  a  military  prize  crew,  can  not 
render  the  stipulations  of  Article  19  of  said  treaty  null  and  void.  The 
prize  masters  and  prize  crew,  who  represent  the  authority  of  the  bel- 
ligerent State,  now  take  the  place  which  the  capturing  vessel  held  form- 
erly. That  such  stipulations  are  not  in  contradiction  to  the  general 
rules  of  international  law,  and  that,  therefore,  the  treaty  is  not  subject 
to  the  especially  strict  interpretation  given  to  it  by  the  Department  of 


CASE  OF  THE  APPAM  195 

State,  is  proved  by  Article  23  of  the  Hague  Convention  regarding 
neutrality  on  sea,  which  was  adopted  by  a  great  majority,  although 
under  reservation  by  the  United  States,  Great  Britain,  and  Japan. 

The  Department  of  State  missed  in  the  commission  of  Lieut.  Berg 
an  order  to  take  the  prize  into  a  German  port,  as  it  is  unwilling  to 
admit  the  permanent  internment  of  the  German  prize  in  an  American 
port  as  a  consequence  of  the  treaty.  As  proved  by  the  last  but  obsolete 
sentences  of  Article  19  of  the  treaty  of  1785  and  Article  19  of  the 
treaty  of  1799,  the  object  of  Article  19  is  to  grant  asylum  or  shelter 
to  prizes  of  one  contracting  party  in  the  ports  of  the  other  party.  The 
asylum  naturally  continues  only  as  long  as  the  prize  crew  is  on  board 
and  the  danger  of  being  captured  by  enemy  naval  forces  exists.  Both 
premises  prevail  in  this  case.  Lieut.  Berg,  an  officer  of  the  Imperial 
Navy,  was  commissioned  by  the  commander  of  a  German  warship  to 
seek  with  his  prize  in  an  American  port  the  asylum  guaranteed  by  the 
treaty.  The  opinion  of  the  Department  of  State  that  the  commission 
must  mention  a  German  port  of  destination  for.the  prize  is  unfounded, 
as  Article  19  only  provides  the  freedom  of  the  prize  to  leave  for  the 
places  which  are  named  in  the  commission,  but  does  not  make  the  right 
of  asylum  depend  on  such  port  being  mentioned.  Such  an  indication 
seems  superfluous  if  the  prize  is  conducted  by  a  prize  crew  mustered 
from  the  Imperial  Navy,  for  such  crew  has  to  bring  the  prize  into  a 
German  port  as  soon  as  possible.  At  present  the  claim  for  asylum 
naturally  still  exists,  considering  the  uneven  distribution  of  the  domina- 
tion of  the  seas  between  the  belligerents. 

As  long  as  the  right  of  asylum  lasts  the  jurisdiction  of  American 
courts  over  the  prize  is  formally  excluded  by  Article  19;  a  German 
prize  court  alone  is  competent.  The  opinion  of  the  Department  of 
State  that  the  American  courts  must  decide  about  the  claims  of  the 
British  shipping  company  is  incompatible  with  the  treaty  -stipulations. 

It  is  therefore  respectfully  requested  that  the  prize  crew  should  be 
permitted  to  remain  in  the  American  port,  and  also  that  the  legal 
steps  before  an  American  court  should  be  suspended. 


196  DIPLOMATIC  CORRESPONDENCE 

British  Ambassador  to  the  Secretary  of  State 

BRITISH  EMBASSY, 
Washington,  March  31,  1916. 

MY  DEAR  MR.  SECRETARY  :  On  February  3rd,  last,  I  had  the  honour, 
under  instructions  from  my  Government,  to  request  that  if  the  Appam 
were  regarded  by  the  United  States  Government  as  a  prize  she  should 
be  restored  to  her  owners  and  the  prize  crew  interned. 

Since  that  date  it  has  come  to  my  knowledge  that  a  proceeding  has 
been  brought  in  the  Admiralty  Court  of  the  United  States  by  the 
owners  of  the  vessel  for  its  restitution  and  that  the  court  has  taken 
jurisdiction  of  the  suit.  It  appears  that  the  vessel  had  been  detained 
in  an  American  port  by  the  prize  crew  for  more  than  two  weeks  before 
suit  was  instituted.  I  am  informed  that  the  vessel  was  in  a  seaworthy 
condition  when  brought  into  port  and  that  the  time  which  elapsed 
before  the  beginning  of  the  suit  was  more  than  sufficient  to  supply  any 
deficiencies  of  coal  and  provisions.  The  detention  of  the  vessel  for 
such  a  period  of  time  was  therefore  a  violation  of  the  neutrality  of  the 
United  States  under  the  law  of  nations  as  expressed  in  Articles  21 
and  22  of  Convention  XIII  as  formulated  at  The  Hague  in  1907  and  as 
previously  understood  and  applied  among  the  nations. 

I  understand  that  the  Admiralty  Courts  of  the  United  States  have 
jurisdiction  to  decree  the  restitution  to  the  owners  of  a  prize  brought 
into  an  American  port  by  a  belligerent  captor  when  there  has  been  a 
violation  of  American  neutrality  on  the  part  of  the  captor.  It  seems 
to  me  desirable  and  proper  that  such  violation  of  American  neutrality 
should  be  called  to  the  court's  attention,  not  only  by  the  private  owners 
of  the  captured  vessel  but  also  by  the  official  representatives  of  the 
United  States  Government. 

I  have  the  honour  to  request  that  if  the  United  States  Government 
do  not  see  their  way  clear  to  direct  by  executive  order,  as  suggested 
in  my  note  above  referred  to,  the  return  of  the  vessel  to  her  British 
owners,  instructions  may  be  given,  should  there  be  no  objection,  to  the 
proper  representatives  of  the  Department  of  Justice  of  the  United 
States  to  appear  in  their  official  capacity  before  the  United  States 
District  Court  for  the  Eastern  District  of  Virginia,  in  which  the  suit 
for  the  recovery  of  the  steamship  Appam  is  pending,  and  to  represent 
to  that  court  on  behalf  of  the  Government  of  the  United  States  that 


CASE  OF  THE  APPAM  197 

the  detention  of  the  steamship  Appam  under  the  circumstances  above 
set  forth  constituted  a  violation  of  the  neutrality  of  the  United  States 
and  apply  to  the  court  to  direct  the  return  of  the  vessel  to  her  owners 
upon  due  proof  of  their  ownership  and  of  the  facts  constituting  the 
violation  of  neutrality  above  set  forth. 
I  am,  etc. 

CECIL  SPRING  RICE. 


The  Secretary  of  State  to  the  British  Ambassador 

DEPARTMENT  OF  STATE 
Washington,  April  4,  1916. 

MY  DEAR  MR.  AMBASSADOR  :  I  have  received  your  formal  note  of  the 
31st  ultimo,  in  which  you  request  that  as  the  Appam  had  violated  the 
neutrality  of  the  United  States  by  her  staying  in  port  up  to  the  begin- 
ning of  the  suit  now  pending  against  her,  such  violation  of  American 
neutrality  be  called  to  the  court's  attention  by  the  proper  representatives 
of  the  Department  of  Justice  on  behalf  of  the  Government  of  the 
United  States,  and  that  application  be  made  to  the  court  to  direct  the 
return  of  the  vessel  to  the  owners  upon  due  proof  of  their  ownership 
and  of  the  facts  constituting  a  violation  of  neutrality. 

In  reply,  allow  me  to  say  that  as  the  vessel  was  in  American  juris- 
diction up  until  the  time  of  the  filing  of  the  suit  against  her,  pending 
consideration  of  the  question  as  to  whether  she  was  entitled  to  the 
privileges  claimed  for  her  by  the  German  Government  by  virtue  of 
Article  19  of  the  treaty  of  1799,  and  as  this  Government  reached  a 
decision  on  that  question  only  after  the  libel  had  been  filed,  I  am 
unable  to  accept  your  suggestion  that  the  presence  of  the  Appam  in 
American  waters,  in  the  circumstances,  constituted  a  violation  of  the 
neutrality  of  the  United  States.  Holding  this  view,  I  regret  that  I  am 
unable  to  comply  with  your  request  to  have  official  representations 
made  to  the  court  in  the  sense  of  your  note  under  acknowledgment. 
I  am,  etc., 

ROBERT  LANSING. 


198  DIPLOMATIC  CORRESPONDENCE 

The  Secretary  of  State  to  the  German  Ambassador 

No.  2217.] 

DEPARTMENT  OF  STATE, 

Washington,  April  7,  1916. 

EXCELLENCY  :  I  have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  16th  ultimo,  inclosing  a  memorandum  of  the  Imperial 
German  Government  on  the  subject  of  the  Appam,  now  at  Norfolk. 
The  memorandum  of  the  Imperial  Government  contends,  in  brief,  that 
Article  19  of  the  treaty  of  1799  "speaks,  of  course,  of  commercial  war- 
fare as  it  was  usual  in  those  times  and  which  would  be  carried  on  by 
both  parties  only  by  privateers,"  and  that  the  development  of  modern 
cruiser  warfare,  in  which  a  prize  master  and  crew  representing  the 
authority  of  a  belligerent  State  now  take  the  place  which  the  convoying 
vessel  formerly  held,  should  govern  the  present  interpretation  of  the 
treaty.  The  Government  of  the  United  States  agrees  with  the  German 
Government's  statement  that  the  treaty  speaks  of  a  mode  of  warfare 
in  use  at  the  time  the  treaty  was  negotiated.  It  is  precisely  for  this 
reason  that  the  Government  of  the  United  States  does  not  believe  that 
the  treaty  was  intended  to  apply  to  circumstances  of  modern  warfare 
which  are  essentially  different  from  those  in  vogue  at  the  close  of  the 
eighteenth  century.  The  Government  of  the  United  States  does  not 
understand  upon  what  ground  the  Imperial  Government  contends  that 
a  treaty  granting  concessions  under  specifically  mentioned  circumstances 
can  be  construed  to  apply  to  a  situation  involving  other  and  different 
circumstances.  To  grant  limited  asylum  in  a  neutral  port  to  a  prize 
accompanied  by  the  capturing  vessel  is  not  the  granting  of  a  right  of 
"laying  up"  in  a  neutral  port  a  prize  which  arrives  in  the  control  of  a 
prize  master  and  crew. 

Your  Excellency's  Government  further  contends  that  Article  19, 
besides  being  applicable  to  modern  conditions,  is  not  contrary  to  the 
general  rules  of  international  law,  and  therefore  not  subject  to  a  re- 
stricting interpretation,  and  in  support  of  this  cites  as  declaratory  of 
the  general  rules  of  international  law  Article  23  of  Hague  Convention 
XIII.  As  indicated  by  the  Imperial  Government,  the  United  States 
did  not  in  the  case  of  this  convention,  and  never  has,  assented  to  the 
sequestration  of  prizes  in  its  ports.  The  ground  of  this  position  of  the 
United  States  is  that  it  does  not,  in  the  opinion  of  this  Government, 


CASE  OF  THE  APPAM  199 

comport  with  the  obligations  of  a  neutral  power  to  allow  its  ports  to 
be  used  either  as  a  place  of  indefinite  refuge  for  belligerent  prizes  or  as 
a  place  for  their  sequestration  during  the  proceedings  of  prize  courts. 
The  contention  of  the  Government  of  the  United  States  in  its  note  of 
March  2  in  this  case  is  consistent  with  this  long-established  and  well- 
known  policy  of  the  American  Government,  in  the  light  of  which  the 
treaty  of  1799  was  negotiated  and  has  been  enforced  and  applied. 
Provided  the  vessel  enters  an  American  port  accompanied  by  a  German 
naval  vessel,  Article  19  contemplates  in  the  view  of  this  Government 
merely  temporary  sojourn  of  the  prize  in  an  American  port  and  not  its 
sequestration  there  pending  the  decision  of  a  prize  court. 

Holding  the  view  that  Article  19  is  not  applicable  to  the  case  of  the 
Appam,  this  Government  does  not  consider  it  necessary  to  discuss  the 
contention  of  the  Imperial  Government  that  under  Article  19  American 
courts  are  without  jurisdiction  to  interfere  with  the  prize,  and  for 
the  same  reason  it  can  not  accede  to  the  request  that  the  "legal  steps 
before  an  American  court  should  be  suspended." 

In  Your  Excellency's  note  transmitting  the  memorandum  of  your 
Government  it  is  proposed  that  should  this  Government  fail  to  concur 
in  the  contentions  of  the  Imperial  Government  the  construction  of  the 
treaty  in  question  be  referred  to  the  Hague  Court  of  Arbitration  in 
the  same  way  as  the  Imperial  Government  has  proposed  to  do  in  the 
William  P.  Frye  case,  provided  that  the  status  quo  of  the  Appawi  re- 
main unchanged  throughout  the  arbitration  proceedings  and  that  the 
steamer  be  allowed  to  remain  with  her  prize  crew  in  an  American  port 
during  that  time.  It  is  regretted  that  this  proposal  which  appeals  to 
the  principle  of  arbitration,  of  which  this  Government  is  an  earnest 
advocate,  can  not  be  accepted  in  this  particular  case  by  the  Government 
of  the  United  States.  Its  acceptance  would  manifestly  defeat  the  very 
object  of  the  United  States  in  its  reservation  to  Article  23  of  Con- 
vention XIII  by  allowing  the  prize  to  remain  in  an  American  port 
for  an  indefinite  period  while  the  arbitration  proceedings  were  in  prog- 
ress, which  might  continue  until  after  peace  is  restored.  In  this  respect 
the  case  differs  from  that  of  the  William  P.  Frye.  Moreover,  inasmuch 
as  the  Appam  has  been  libeled  in  the  United  States  District  Court  by 
the  alleged  owners,  this  Government,  under  the  American  system  of 
government,  in  which  the  judicial  and  executive  branches  are  entirely 
separate  and  independent,  could  not  vouch  for  a  continuance  of  the 


200  DIPLOMATIC  CORRESPONDENCE 

status  quo  of  the  prize  during  the  progress  of  the  arbitration  proposed 
by  the  Imperial  Government.  The  United  States  Court,  having  taken 
jurisdiction  of  the  vessel,  that  jurisdiction  can  only  be  dissolved  by 
judicial  proceedings  leading  to  a  decision  of  the  court  discharging  the 
case — a  procedure  which  the  executive  can  not  summarily  terminate. 
In  these  circumstances  the  Government  of  the  United  States  can 
only  accept  the  proposal  of  the  German  Government  for  the  arbitration 
of  the  meaning  of  Article  19  of  the  treaty  of  1799,  upon  the  under- 
standing that  the  Appam  depart  from  the  territorial  jurisdiction  of  the 
United  States,  in  the  event  that  the  libel  is  dismissed  by  the  court 
and  after  she  has  had  a  reasonable  time  to  take  on  board  such  supplies 
as  may  be  necessary,  in  the  judgment  of  this  Government,  for  a  voyage 
to  the  nearest  port  subject  to  the  sovereignty  of  Germany ;  and  failing 
this,  that  she  be  released  and  the  prize  master  and  crew  be  interned 
for  the  remainder  of  the  war. 
Accept,  etc., 

ROBERT  LANSING. 


Ambassador  Gerard  to  the  Secretary  of  State 
No.  3192.] 

AMERICAN  EMBASSY, 

Berlin,  May  22,  1916. 

SIR:  I  have  the  honor  to  enclose  herewith  a  translation  copy  of 
Note  Verbale  No.  Ilia  8936,1  which  the  German  Foreign  Office  ad- 
dressed to  this  Embassy  under  date  of  May  17,  1916,  together  with 
the  three  enclosures  mentioned  therein  and  translation  copies  of  the 
same,  in  connection  with  the  judgment  rendered  by  the  Prize  Court 
at  Hamburg  on  the  llth  instant  in  the  proceedings  against  the  British 
steamship  Appam. 
I  have,  etc., 

JAMES  W.  GERARD. 

[Inclosure] 

IN  THE  NAME  OF  THE  EMPIRE 

In  the  Prize  Court  proceedings  relating  to  the  British  steamship 
Appam,  owners :  African  Steamship  Co.,  home  port  Liverpool, — and 

1  Not  printed. 


CASE  OF  THE  APPAM  201 

her  cargo — the  Imperial  Prize  Court  at  Hamburg,  at  its  session  of 
May  11,  1916,  in  which  took  part: 

1)  Oberlandesgerichtspresident  Dr.  Brandis,  as  President, 

2)  Mr.  Nolze,  merchant, 

3)  Captain  Reincke,  I.  N.  retired,  as  Assistant 

4)  Oberlandesgerichtsrat  Dr.  Lehmann,  Judges, 

5)  Mr.  Witthoefft,  merchant, 

rendered  the  following  judgment : 

The  captured  vessel  and  the  cargo  therein  have  been  legally  captured 
and  are  to  be  confiscated. 


REASONS 

The  British  steamship  Appam,  a  merchant  vessel,  was  captured  on 
January  15,  1916,  by  H.  M.  S.  Mdwe,  in  the  Atlantic  Ocean  and  brought 
to  Newport  News.  According  to  the  ship's  papers  the  vessel  is  of 
British  nationality;  proprietor  is  the  African  Steamship  Company  of 
Liverpool.  The  ship  is  registered  at  Liverpool.  The  steamship  was 
on  the  voyage  from  Duala  to  Liverpool.  Enemy  vessels  are  subject 
to  capture,  according  to  P[rize]  Ordinance]  10,  and  to  confiscation, 
according  to  P.  O.  17. 

The  cargo  on  board  consisted  of  about  3,000  tons  of  general  cargo, 
including  £36,549  gold  in  bars.  According  to  the  bills  of  lading,  in 
connection  with  P.  O.  20,  the  entire  cargo  must  be  considered  as  enemy 
property  and  is  subject  to  confiscation,  according  to  P.  O.  18. 

In  reply  to  the  monition  which,  in  accordance  with  the  provisions  of 
§26  P.  G.  O.,  was  published  on  March  20,  1916,  in  the  Deutscher 
Reichsanzeiger  (Imperial  German  Gazette)  for  the  entry  of  claims 
in  respect  of  ship  and  cargo,  nobody  has  applied  within  the  stipulated 
period  of  six  weeks.  The  application  of  the  Imperial  Commissioner 
has  been  made  in  accordance  with  P.  G.  O.  20. 

Judgment  had,  accordingly,  to  be  given  as  stated. 

(Signed)         BRANDIS.  DR.  K.  LEHMANN. 


202  DIPLOMATIC  CORRESPONDENCE 

For  the  proper  copy: 

Hamburg,  May  11,  1916. 
(L.  S.)  Signature, 

Secretary  of  the  Imperial  Prize  Court. 

Certified. 

Berlin,  May  17,  1916. 
[SEAL]  The  Foreign  Office  of  the  German  Empire. 

By  order: 
90980 

(Signed)     Kriege. 

Embassy  of  the  United  States  of  America,  Berlin. 
Seen  for  authentication  of  the  foregoing  signature. 
This  18th  day  of  May,  1916. 

[SEAL]  (Signed)     ROLAND  B.  HARVEY, 

Secretary  of  the  Embassy. 


Proposal  of  the  German  Government  for  a  revision  of  the  Treaty 

of  17991 

The  Minister  of  Sivitzerland  in  Charge  of  German  Interests  in  America 
to  the  Secretary  of  State 

LEGATION  OF  SWITZERLAND, 
Washington,  February  10,  1017. 

MR.  SECRETARY  OF  STATE:  The  German  Legation  at  Berne  has 
communicated  the  following  to  the  Swiss  Political  Department  (For- 
eign Office)  : 

The  American  treaty  of  friendship  and  commerce  of  the  eleventh 
of  July,  1799,  provides  by  Article  23  for  the  treatment  of  the  sub- 
jects or  citizens  of  the  two  States  and  their  property  in  the  event 
of  war  between  the  two  States.  This  article,  which  is  without 
question  in  full  force  as  regards  the  relations  between  the  Ger- 


1  Official  Prints  of  the  Department  of  State. 


PROPOSED  REVISION  OF  TREATY  OF  1799  203 

man  Empire  and  the  United  States,  requires  certain  explanations 
and  additions  on  account  of  the  development  of  international  law. 
The  German  Government  therefore  proposes  that  a  special  ar- 
rangement be  now  signed,  of  which  the  English  text  is  as  follows : 

Agreement  between  Germany  and  the  United  States  of  America 
concerning  the  treatment  of  each  others  citizens  and  their  private 
property  after  the  severance  of  diplomatic  relations. 

Article  i).  After  the  severance  of  diplomatic  relations  between 
Germany  and  the  United  States  of  America  and  in  the  event  of 
the  outbreak  of  war  between  the  two  Powers,  the  citizens  of  either 
party  and  their  private  property  in  the  territory  of  the  other  party 
shall  be  treated  according  to  Article  23  of  the  treaty  of  amity  and 
commerce  between  Prussia  and  the  United  States,  of  the  llth  of 
July,  1799,  with  the  following  explanatory  and  supplementary 
clauses : 

Article  2).  German  merchants  in  the  United  States  and  Amer- 
ican merchants  in  Germany  shall,  so  far  as  the  treatment  of  their 
persons  and  their  property  is  concerned,  be  held  in  every  respect 
on  a  par  with  the  other  persons  mentioned  in  Article  23.  They 
shall  accordingly,  even  after  the  period  provided  for  in  Article  23 
has  elapsed,  be  entitled  to  remain  and  continue  their  profession  in 
the  country  of  their  residence.  Merchants  as  well  as  the  other 
persons  mentioned  in  Article  23  may  be  excluded  from  fortified 
places  or  other  places  of  military  importance. 

Article  j?).  Germans  in  the  United  States  and  Americans  in 
Germany  shall  be  free  to  leave  the  country  of  their  residence 
within  the  time  and  by  the  routes  that  shall  be  assured  to  them 
by  the  proper  authorities.  The  persons  departing  shall  be  entitled 
to  take  along  their  personal  property,  including  money,  valuables, 
and  bank  accounts,  excepting  such  property  the  exportation  of 
which  is  prohibited  according  to  general  provisions. 

Article  4).  The  protection  of  Germans  in  the  United  States  and 
of  Americans  in  Germany  and  of  their  property  shall  be  guaran- 
teed in  accordance  with  the  laws  existing  in  the  countries  of  either 
party.  They  shall  be  under  no  other  restrictions  concerning  the 
enjoyment  of  their  private  rights  and  the  judicial  enforcement  of 
their  rights  than  neutral  residents.  They  may  accordingly  not  be 
transferred  to  concentration  camps,  nor  shall  their  private  prop- 
erty be  subject  to  sequestration  or  liquidation  or  other  compulsory 
alienation  except  in  case  that  under  the  existing  laws  apply  also 
to  neutrals.  As  a  general  rule  German  property  in  the  United 
States  and  American  property  in  Germany  shall  not  be  subject  to 
sequestration  or  liquidation,  or  other  compulsory  alienation  under 
other  conditions  than  neutral  property. 

Article  5).  Patent  rights  or  other  protected  rights  held  by  Ger- 
mans in  the  United  States  or  Americans  in  Germany  shall  not  be 
declared  void,  nor  shall  the  exercise  of  such  rights  be  impeded, 


204  DIPLOMATIC  CORRESPONDENCE 

nor  shall  such  rights  be  transferred  to  others  without  the  consent 
of  the  person  entitled  thereto,  provided  that  regulations  made  ex- 
clusively in  the  interest  of  the  State  shall  apply. 

Article  (5).  Contracts  made  between  Germans  and  Americans, 
either  before  or  after  the  severance  of  diplomatic  relations,  also 
obligations  of  all  kinds  between  Germans  and  Americans,  shall 
not  be  declared  cancelled,  void,  or  in  suspension,  except  under 
provisions  applicable  to  neutrals.  Likewise  the  citizens  of  either 
party  shall  not  be  impeded  in  fulfilling  their  liabilities  arising  from 
such  obligations,  either  by  injunctions  or  by  other  provisions,  un- 
less these  apply  to  neutrals. 

Article  7).  The  provisions  of  the  sixth  Hague  Convention, 
relative  to  the  treatment  of  enemy  merchant  ships  at  the  outbreak 
of  hostilities,  shall  apply  to  the  merchant  vessels  of  either  party 
and  their  cargo.  The  aforesaid  ships  may  not  be  forced  to  leave 
port  unless  at  the  same  time  they  be  given  a  pass,  recognized  as 
binding  by  all  the  enemy  sea  powers,  to  a  home  port,  or  a  port  of 
an  allied  country,  or  to  another  port  of  the  country  in  which  the 
ship  happens  to  be. 

Article  8).  The  regulations  of  chapter  3  of  the  eleventh  Hague 
Convention,  relative  to  certain  restrictions  in  the  exercise  of  the 
right  of  capture  in  maritime  war,  shall  apply  to  the  captains, 
officers,  and  members  of  the  crews  of  merchant  ships  specified  in 
Article  7,  and  of  such  merchant  ships  as  may  be  captured  in  the 
course  of  a  possible  war. 

Article  p).  This  agreement  shall  apply  also  to  the  colonies  and 
other  foreign  possessions  of  either  party. 

I  am  instructed  and  have  the  honor  to  bring  the  foregoing  to  your 
Excellency's  knowledge  and  to  add  that  the  German  Government  would 
consider  the  acrangement  as  concluded  and  act  accordingly  as  soon  as 
the  consent  of  the  American  Government  shall  have  been  communi- 
cated to  it  through  the  Swiss  Government. 
Be  pleased,  etc., 

P.  RITTER. 


The  Secretary  of  State  to  the  Minister  of  Switzerland  in  Charge  of 
German  Interests  in  America 

No.  416.]  DEPARTMENT  OF  STATE, 

Washington,  March  20,  1917. 

SIR  :  I  beg  to  acknowledge  the  receipt  of  your  note  of  February  10th 
presenting  the  proposals  of  the  German  Government  for  an  interpre- 
tative and  supplementary  agreement  as  to  Article  23  of  the  treaty  of 


PROPOSED  REVISION  OF  TREATY  OF  1799  205 

1799.  After  due  consideration,  I  have  to  inform  you  that  the  Govern- 
ment of  the  United  States  is  not  disposed  to  look  with  favor  upon  the 
proposed  agreement  to  alter  or  supplement  the  meaning  of  Article  23 
of  this  treaty.  This  position  of  the  Government  of  the  United  States, 
which  might  under  other  conditions  be  different,  is  due  to  the  repeated 
violations  by  Germany  of  the  treaty  of  1828  and  the  Articles  of  the 
treaties  of  1785  and  1799  revived  by  the  treaty  of  1828.  It  is  not 
necessary  to  narrate  in  detail  these  violations,  for  the  attention  of  the 
German  Government  has  been  called  to  the  circumstances  of  each 
instance  of  violation,  but  I  may  here  refer  to  certain  of  them  briefly 
and  in  general  terms. 

Since  the  sinking  of  the  American  steamer  William  P.  Frye  for  the 
carriage  of  contraband,  there  have  been  perpetrated  by  the  German 
naval  forces  similar  unwarranted  attacks  upon  and  destruction  of 
numerous  American  vessels  for  the  reason,  as  alleged,  that  they  were 
engaged  in  transportation  of  articles  of  contraband,  notwithstanding, 
and  in  disregard  of,  Article  13  of  the  treaty  of  1799,  that  "No  such 
articles  (of  contraband)  carried  in  the  vessels  or  by  the  subjects  or 
citizens  of  either  party  to  the  enemies  of  the  other  shall  be  deemed 
contraband  so  as  to  induce  confiscation  or  condemnation  and  a  loss  of 
property  to  individuals,"  and  that  "In  the  case  ...  of  a  vessel 
stopped  for  articles  of  contraband,  if  the  master  of  the  vessel  stopped 
will  deliver  out  the  goods  supposed  to  be  of  contraband  nature,  he  shall 
be  admitted  to  do  it,  and  the  vessel  shall  not  in  that  case  be  carried 
into  any  port  or  further  detained,  but  shall  be  allowed  to  proceed  on 
her  voyage." 

In  addition  to  the  sinking  of  American  vessels,  foreign  merchant 
vessels  carrying  American  citizens  and  American  property  have  been 
sunk  by  German  submarines  without  warning  and  without  any  adequate 
security  for  the  safety  of  the  persons  on  board  or  compensation  for 
the  destruction  of  the  property  by  such  action,  notwithstanding  the 
solemn  engagement  of  Article  15  of  the  treaty  of  1799  that  "All 
persons  belonging  to  any  vessel  of  war,  public  or  private,  who  shall 
molest  or  insult  in  any  manner  whatever  the  people,  vessels  or  effects 
of  the  other  party,  shall  be  responsible  in  their  persons  and  property 
for  damages  and  interest,  sufficient  security  for  which  shall  be  given 
by  all  commanders  of  private  armed  vessels  before  they  are  commis- 
sioned," and  notwithstanding:  the  further  stipulation  of  Article  12  of 
the  treatv  of  1785  that  "The  free  intercourse  and  commerce  of  the 


206  DIPLOMATIC  CORRESPONDENCE 

subjects  or  citizens  of  the  party  remaining  neutral  with  the  belligerent 
Powers  shall  not  be  interrupted."  Disregarding  these  obligations,  the 
German  Government  has  proclaimed  certain  zones  of  the  high  seas  in 
which  it  declared  without  reservation  that  all  ships,  including  those  of 
neutrals,  will  be  sunk,  and  in  those  zones  German  submarines  have,  in 
fact,  in  accordance  with  this  declaration,  ruthlessly  sunk  merchant 
vessels  and  jeopardized  or  destroyed  the  lives  of  American  citizens  on 
board. 

Moreover,  since  the  severance  of  relations  between  the  United  States 
and  Germany,  certain  American  citizens  in  Germany  have  been  pre- 
vented from  removing  freely  from  the  country.  While  this  is  not  a 
violation  of  the  terms  of  the  treaties  mentioned,  it  is  a  disregard  of  the 
reciprocal  liberty  of  intercourse  between  the  two  countries  in  time  of 
peace,  and  can  not  be  taken  otherwise  than  as  an  indication  of  a  purpose 
on  the  part  of  the  German  Government  to  disregard  in  the  event  of 
war  the  similar  liberty  of  action  provided  for  in  Article  23  of  the 
treaty  of  1799 — the  very  article  which  it  is  now  proposed  to  interpret 
and  supplement  almost  wholly  in  the  interest  of  the  large  number  of 
German  subjects  residing  in  the  United  States  and  enjoying  in  their 
persons  or  property  the  protection  of  the  United  States  Government. 
This  article  provides  in  effect  that  merchants  of  either  country  residing 
in  the  other  shall  be  allowed  a  stated  time  in  which  to  remain  to  settle 
their  affairs  and  to  "depart  freely,  carrying  off  all  of  their  effects  with- 
out molestation  or  hindrance,"  and  women  and  children,  artisans  and 
certain  others,  may  continue  their  respective  employments  and  shall  not 
be  molested  in  their  persons  or  property.  It  is  now  proposed  by  the 
Imperial  German  Government  to  enlarge  the  scope  of  this  article  so 
as  to  grant  to  German  subjects  and  German  property  remaining  in  the 
United  States  in  time  of  war  the  same  treatment  in  many  respects  as 
that  enjoyed  by  neutral  subjects  and  neutral  property  in  the  United 
States. 

In  view  of  the  clear  violations  by  the  German  authorities  of  the  plain 
terms  of  the  treaties  in  question,  solemnly  concluded  on  the  mutual 
understanding  that  the  obligations  thereunder  would  be  faithfully  kept, 
in  view  further  of  the  disregard  of  the  canons  of  international  courtesy 
and  the  comity  of  nations  in  the  treatment  of  innocent  American  citi- 
zens in  Germany,  the  Government  of  the  United  States  can  not  per- 
ceive any  advantage  which  would  flow  from  further  engagements,  even 
though  they  were  merely  declaratory  of  international  law,  entered  into 


PROPOSED  REVISION  OF  TREATY  OF  1799  207 

with  the  Imperial  German  Government  in  regard  to  the  meaning  of 
any  of  the  articles  of  these  treaties,  or  as  supplementary  to  them.  In 
these  circumstances,  therefore,  the  Government  of  the  United  States 
declines  to  enter  into  the  special  protocol  proposed  by  the  Imperial 
Government. 

I  feel  constrained  in  view  of  the  circumstances  to  add  that  this  Gov- 
ernment is  seriously  considering  whether  or  not  the  treaty  of  1828 
and  the  revived  articles  of  the  treaties  of  1785  and  1799  have  not  been 
in  effect  abrogated  by  the  German  Government's  flagrant  violations  of 
their  provisions,  for  it  would  be  manifestly  unjust  and  inequitable  to 
require  one  party  to  an  agreement  to  observe  its  stipulations  and  to 
permit  the  other  party  to  disregard  them.  It  would  appear  that  the 
mutuality  of  the  undertaking  has  been  destroyed  by  the  conduct  of  the 
German  authorities. 
Accept,  etc., 

ROBERT  LANSING. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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